Unenforceability

rigger_john

ILW wrote: »

I guess this is an arguemant based on whether the law is moral or not.
For example, legally speaking, if one overstays on a parking meter for a minute or two a £60.00 fine is OK. If one goes over an overdraft limit by a few pounds a £30 charge is considered illegal. Something doesn't seem right to me, but then again I am not a lawyer.

I think it all depends which side of the fence you are on, me I'm for the law, so to use your example if i got a PCN issued by a official officer, warden or PC for example and the signage was correct and the bays were correctly marked as prescribed by the relevent acts I would just pay it and take the hit, because that is what the law says I must do. Even though I personaly think the law that allows them to do it is unfair. However if it was issued and they hadn't followed the letter of the law I would appeal. If they can use the law to generate £60 income from my 1 or 2 minute infringement then why shouldn't I use it to preserve my income?

OTOH a private car parking company issuing a PCN is breaking the law because the law says they are not allowed to do so. So I would have no moral objection to using whatever laws I could to stop them in their tracks and indeed have done.

So back to the banks, the law says it is unlawful for a bank to issue a fine and overdraft charges ect are, according to the law fines (penalties if you want to be exact). Is it right to claim them back then? According to the law yes. Is it moral, as I said earlier I'll leave that to the philosophers.

If you think the banks are justified you are arguing from a moral view point, whereas those who feel the banks are not justified are arguing from a legal stance. I doubt very much there can be an agreement unless first the terms of the disscusion were defined.

If I ask are the banks acting in a lawful manner I expect the replies to the question to be based on the law if you say they have a moral right you are answering a question that wasn't asked.

But back to your question is the law moral? Maybe not, but it's not the job of the courts to decide on that, I suspect that will be one for Parliment, which is where the banks will go to have the law changed when the House of Lords rule against them, which IMHO they must.

rigger_john

sdooley wrote: »

Just because a maxim is written in Latin doesn't make it an unqualified principle in common law.

I couldn't agree more, however I do think that this particular maxim has been tested quite a lot

sdooley wrote: »

Penalties such as libary fines are lawful, even without statutory backing. Late fees for video rentals in the pre-LOVEFILM days were also legal - though the rental store might not call it a penalty.

You may well be right there, personaly I'm not aware of any case which has tested the lawfulness of fines & fees

sdooley wrote: »

my money is on the eventual outcome being they were legal but unfair under consumer protection law. .

Care to eloborate on why you think this is the approch the HOL will take? I would be genuinly intersted to read your views on this.

sdooley wrote: »

(I say that as sommeone who is lucky enough never to have been in a position where I've missed a payment, even when broke as a student).

I really wish I could have said that!

petermb_2

rigger_john wrote: »

I couldn't agree more, however I do think that this particular maxim has been tested quite a lot



You may well be right there, personaly I'm not aware of any case which has tested the lawfulness of fines & fees



Care to eloborate on why you think this is the approch the HOL will take? I would be genuinly intersted to read your views on this.



I really wish I could have said that!

For what it is worth, i think the banks stink in the eyes of parliament and the House of Lords and I think it is a foregone conclusion that the HOL will find against the banks. I will be amazed if they do otherwise, having discussed these very issues with one of the Peers last week.

cyril82

simon_templar wrote: »

As stated earlier your question is slanted to fit your line of argument. Please try this question instead -

A customer has £10 in their bank account. They have a direct debit to SKY for £45 due out the next day. They have no agreed overdraft with the bank. The direct debit goes out and they are £35 overdrawn. They did not ask to borrow that £35 they simply STOLE it.

It is not very often that a bank will pay a bill for a customer when they do not have the funds to cover it in the account, that is why i feel my example was more of a typical example, but still your argument that any theft took place is rubbish. The bank, in these rare cases have the automated facility to not pay bills when funds are not available, therefore if they choose to pay the bill they are lending the customer the money. Think logically, if you went next door, knocked on your neighbours door, thrust an envelope into his hand with £40 in it and said, "here lend this for a month" and he accepted, did your neighbour borrow the money, or steal the money? Also if banks did pay bills when applying these charges i think less people would complain as they are at least receiving some form of service for the money.

However one would still have to question if that would constitue loansharking as a £35 charge/interest rate for lending £35 for a month (the time they expect to repaid in such instances) is extortionate and far higher than the often villified "Payday Loan Companies" who typically charge around £30 to lend £100 for a month.

With regards Parking fines, there is legislation which allows people to be fined by government bodies, i.e councils, so it is not the same thing as there is no legislation to allow banks to fine people. Discussing private car parks would open up a whole new debate as they are a law unto themselves.

Library books and video rental also are totally different as you are "hireing" goods, which if you do not return after the agreed rental period are in effect being hired by you without permission, so the hirer should pay extra hire costs, even if it is at a higher rate, for the time which they hold the goods.

Therefore None of these arguments hold any weight, in my opinion.

sdooley

petermb wrote: »

For what it is worth, i think the banks stink in the eyes of parliament and the House of Lords and I think it is a foregone conclusion that the HOL will find against the banks. I will be amazed if they do otherwise, having discussed these very issues with one of the Peers last week.

Was the Peer a Law Lord?