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Month: March 2017

Financial Conduct Authority, Office of Fair Trading and Financial Ombudsmen

Financial Conduct Authority, Office of Fair Trading and Financial Ombudsmen

Q6. Financial Conduct Authority, Office of Fair Trading and Financial Ombudsmen. Explain their roles.

Litigation is conducted in the courts. Court Reform (Scotland) Act 2014. S39 Civil proceedings – Sheriff Court < £100,000. S44 Summary Sheriff – Simple procedure < £5000 (s72). S92 Importance/difficulty = Court of Session.

The disadvantages of Litigation is that it is conducted ion public which is a drawback for commercial organisations as they would like to avoid information which affects their reputation in a negative way. It is also costly and finally it takes a long time and during the course of this parties may stop trading with each other as relationship is irretrievably damaged.

Remedies include payment, declarator, specific implement, interdict and reduction. This is always open to parties in order to enforce their rights. However, this can be contrasted with arbitration in terms of a contractual agreement.

Arbitration (S) Act 2010 has replaced the common law. If parties wish a binding resolution of their dispute, but don’t want to go to court then this is the main alternative. S1 of the act stated that the object of the arbitration is to resolve disputes without unnecessary delay or expense. One of the main advantages is that a party has the capacity to appoint as an arbitrator a person who is an expert in the field of the particular commercial dispute. Another key benefit is it’s confidential. It can be cheaper than litigation. The procedure is generally more flexible than a court procedure.  Parties may refer disputes between themselves to arbitration in terms of a contract.

Common law position is represented by the statement by Lord Dunedin in Sanderson v Armour 1922 that “if parties have contracted to arbitrate to arbitration, they must go”. It may be difficult however, to persuade a court that an arbitration clause in a contract between two businessmen is unfair. Unfair Terms in Consumer Contract regulations 1999. Generally, this acts on the basis that a consumer can decline to arbitrate where the arbitration is unfair, however in Mylcrist Builders v Buck 2009 the arbitration had gone ahead without the participation of the consumer and the company was seeking to enforce award. It was held that since the agreement was not binding on Mrs Buck, the tribunal lacked jurisdiction to make the award, so enforcement was impossible. An example of this is what happened to Mobile Mechanic London . Very interesting outcome

As an alternative to litigation or arbitration, parties may seek to settle their disputes via procedures which do no not result in a binding decision being handed down by a 3rd party.

Only a natural person can be an arbitrator R3. Arbitrator must be over 16 and must not be incapable of acting R4. Arbitrator must disclose to parties before and during process of any conflict of interest R8. But need not resign!

Negotiation, can be carried on directly between parties or through representatives such as legal advisors. An agreement to negotiate is not binding. Walford v Miles 1992

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Depositors

Depositors

Depositor/Dispositee. This guide is brought to you by Notary public London

Goldsmiths retained jewellery for safekeeping, Issued receipts. Sometimes receipts traded. Also lent money on strength of items deposited. A person who is making a deposit with the bank is known as a depositor. The depositor is the lender of the money which will be returned to him/her at the end of the deposit period.

The person with whom something is deposited is the Dispositee

Debtor and creditor, when depositor pays money into bank ceases to be depositor’s property becomes property of bank to do as it wishes

Under the Consumer Credit Act 1974 s75 deals with connected lender liability. The premise of this act is that breaches of a contract by sale by trade seller will have implications for the creditor in terms of the back to back consumer credit or consumer hire purchase. It directs that if a debtor

This relationship was described by Lord MacKay in Royal Bank of Scotland v Skinner case

Relationship of customer and banker is neither a relation of principal and agent nor a relation of a fiduciary nature, trust, or the like, but a simple relation – it may be one sided, or it may be two-sided – of creditor–debtor. The banker is not, in the general case, the custodian of money. When money is paid in, despite the popular belief, it is simply consumed by the banker, who gives an obligation of equivalent amount”.

That statement accurately reflects the position under English Law as decided in Foley v Hill above. Where the customer has more than one account (one in debit and one in credit) and the banker has an exercisable right of set-off between the accounts, it is the net balance (if any) which the bank is liable to repay to the customer. In the circumstances once money, whether representing the proceeds of a benefit payment or any other source, is credited to a bank account it simply becomes a debt due by the bank to the account holder and it is not necessary to identify the source of the funds credited to the account.

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Tax badged (hidden questions)

Tax badged (hidden questions)

Tax “Badges of Trade”

The Income Tax (Trading and Other Income) Act 2005 states that the trading profit of a person who is resident in the UK are chargeable to income tax whether the trade is carried on. The trading profits of a non UK resident are chargeable to income tax only if the trade is carried on wholly or partly in the UK. When deciding if someone is trading or not it’s important to make two distinctions:

(a) The distinction between employment and self-employment

(b) For a taxpayer who sells goods or other assets, the distinction is between trading activities and non-trading activities.

Section 989 of the Income tax states that a “Trade” includes “any venture in the nature of trade”. This circular definition is f little real help and therefore it has been left largely to the courts to decide whether or not a given activity constitutes trading.

The way to distinguish is through the “badges of trade”, they are as follows:

(a) Subject matter of transaction

If a taxpayer sells assets of a type which might normally be acquitted for personal enjoyment or held as a source of income, this may suggest that any profit arising on their sale should be treated as a capital gain rather than a trading profit. But if the assets concerned do not provide personal enjoyment and do not yield income, it would seem that the only way in which they could be turned to advantage is by selling them. In these circumstances, any profit arising on their sale might be treated as a trading profit. In Mary v Lowry 1926 the tax payer bought and sold a huge quantity of ware surplus lien. In Rutledge v CIR 1929 the taxpayer bought and sold one million toilet rolls. In both cases, it was held that the subject matter of the transaction was such that activity could be construed as trading.

(b) Length of the period of ownership

Trading stocks are normally retained for only a short period before being sold, whereas assets acquired for personal use or as a source of income are generally retained for longer. Therefore, if assets are bought and sold within a short space, of time it is more likely that any profit made will be treated as trading profit.

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To create a valid lien, it is essential…

To create a valid lien, it is essential…

1.1. INTRODUCTION

1.2 NATURE OF LIENS

Here, we shall go in-depth into the liens proper and try to understand the interest.

Lien arises to fulfil the obligation which a party to a transaction has failed to fulfil upon the fulfilment of the other party’s obligation. For example, in a conveyance of land, there is an obligation on the part of vendor to convey a good title to the purchaser in return for an obligation on the part of the purchaser to pay the purchase price. Breach by any of the parties will give rise to an equitable lien, outside the express or implied contract of the parties to the transaction. Thus, in Barclays Bank Plc v. Estates & Commercial Ltd (1997) WLR @ pg 415 it was decided that a vendor of land who has conveyed the land to the purchaser has in equity, a lien upon the property for unpaid purchase money. Conversely, a lien will also arise in favour of a purchaser who has made a full or part payment of the purchase price by way of deposit but who has not obtained a conveyance of the property[3].

We have earlier gone through the preliminary issues of the concept of security and the classification of security. It then becomes pertinent to examine the various security interests applicable in security transactions.

A security interest is a property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt[1]. We have four traditional security interests:

-Liens

-Pledges

-Mortgage

-Charge

The above four interests are inter-related and may crisscross with one another or crystallise into another.

A lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation[2].

To create a valid lien, it is essential:

  1. That the party to whom or by whom it is acquired should have the absolute property or ownership of the thing or, at least, a right to vest it;

 

  1. That the party claiming the lien should have an actual or constructive, possession, with the assent of the party against whom the claim is made;

 

  1. That the lien should arise upon an agreement, express or implied and not be for a limited or specific purpose inconsistent with the express terms or the clear, intent of the contract; e.g., when goods are deposited to be delivered to a third person or to be transported to another place.

 

We shall examine the other forms of security interests subsequently.For additional reading, read the material found on: https://www.deepdyve.com/lp/de-gruyter/a-step-forward-in-the-harmonization-of-european-jurisdiction-Jo5YDwWL1r?articleList=%2Fsearch%3Fquery%3Dbrussels%2BI

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Final

Final

The third guideline is s2 of the 1890 act is that the receipt by a person of a share of the profits of a business is primâ facie evidence that he is a partner in the business, but the receipt of such a share, or of a payment contingent on or varying with the profits of a business, does not of itself make him a partner in the business. However, there are a number of exceptions, such as that partners can pay off a creditor by instalments out of profits and the creditor will not be a partner. The case of Cox v Hickman is an example of that situation. In this case the House of Lords clarified that the sharing of profits only created a rebuttable presumption of partnership Hickman attempted to sue Cox who never acted in the position of trustees but he failed in this case because there was no intention of Cox to set up paternal relationship with Hickman. Only by shared profits can not determine there was partnership between them, so it was supported by the court when Cox denied liability. Partnership should meet all requirements prescribed by law instead of judging from shared profits. For further details, visit my friends site in abogados de accidentes florida

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Section 2

Section 2

Section 2 of the 1890 act provides guidelines to assist with the how to determine when the law will deem a partnership to exist. The first guideline describes that joint tenancy, tenancy in common, joint property, common ownership or part ownership does not of itself create a partnership. Whether the tenants or owners do or do not share any profits made by the use thereof.  This principle was illustrated in the case of Sharpe v Carswell 1910 where Carswell argued because Sharpe held share in the fishing boat, he was a partner and not an employee. It was held that mere ownership of shares did not render the deceased as a partner and Sharpe successfully proved her entitlement to compensation under the act. The reason for this decision arose from the judgement made by Lord Guthrie and raised the question whether the decision in the English case of Ellis 1905 could be applied in Scotland, in view of the difference between the Scots and the English law of partnership. In the Elis case, there was a partnership; it was held that a partner could not recover compensation if they became injured at work as they would not be consider a worker. In Scotland a firm is a separate persona , and holding that in that case a shareholder of a company doing work for the company is not in the position of employer and employed, does not equally apply in Scotland to the case of a proper partnership. But that question does not arise here, because I concur in the view that, on the facts of the present case, no partnership existed between the deceased and the other joint owners of the ship. Here we can see that the courts looked at the interpretation of law in a different way based on their own jurisdiction. What the law deems as a partnership differs from what the law sees it in England.

http://uk.practicallaw.com/8-107-6976

Discuss, with reference to authority when the law will deem a partnership to exist?

Discuss, with reference to authority when the law will deem a partnership to exist?

“…in the eyes of the law and in particular s.1 of the 1890 Act, partnership is a relationship that is determined by the substance of the interactions between the parties, and not by their conscious wishes or the designation which they choose to apply to that relationship.”

(Milman, A Review of Recent Developments in Partnership Law, Company Law Newsletter, 2009, 251, 1-5)

Discuss, with reference to authority when the law will deem a partnership to exist?

There is confusion as to what deems a partnership. It could be said that partnerships have existed for as long as business has been conducted but until the Partnership Act 1890 most of the law relating to the operation and status of partnerships developed through case law precedent. In regards to section 1 of the 1890 act; it defines a partnership “Partnership is the relation which subsists between persons carrying on a business in common with a view of profit.” The fundamental problem here is that, in the eyes of the law and in particular s.1 of the 1890 Act, partnership is a relationship that is determined by the substance of the interactions between the parties, and not by their conscious wishes or the designation which they choose to apply to that relationship.” I will be discussing what deems a partnership to exist and how we understand it to exist.

The relationship of partnership may be deliberately chosen or it may exist without the partners having made any conscious choice. The partnership may exist even though the joint ventures have said in a written agreement that they are not going to be “partners”. The test always is whether the statutory definition is satisfied. If it is, they are partners regardless of what their agreement says

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