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Archive for February 12, 2019

Claims for conversion against company directors

We recently advised asset financiers as to their rights where a company which had taken numerous items of plant and machinery on Hire Purchase purported to sell the assets to a buyer in the European Union who then sold them on to a buyer in Asia.

The Hirer Company was effectively insolvent but it was clear from the investigations we carried out that the purported sale had been arranged by the sole director of the Company, and that no other individual had any real involvement in the transaction on its behalf.

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Consumer Rights Act may apply to Guarantors of Companies

The Consumer Rights Act 2015 (“CRA”) is an important piece of recent legislation which governs many contracts between traders and consumers, and implements the. EU Unfair Contract Terms Directive (93/13/EC) (“UTD”.) “Consumer” is defined in section 2 (3) of the Act as: –

“an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.”

There is as yet no direct authority on how the definition of consumer applies in the context of security documentation, but the Court of Justice of the European Union (ECJ) has set out the test in the UTD for when it applies to personal Guarantees and security agreements given by an individual to secure debts of a company In Dumitru Tarcău, Ileana Tarcău v Banca Comercială Intesa Sanpaolo România SA (C-74/15) the court held that a personal Guarantee was to be subject to the UTD because it was given by a natural person, acting outside his trade or business, and who had no functional links to the guaranteed company.

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