Cap1 & CCA return

[means2anend]

I say the above because when you read through the SI 3236 carefully..NOWHERE in it does it actually AUTHORISE the OMISSION of a signature as required by s61 and s189(1) but only goes as far as to say that some verification process or means of providing THAT signature should be adopted.

 

The ONLY piece of legislation or Regulation that authorises the OMISSION of signatures (as far as I know ) is Cancellation of Notices and Copies of Documents Regulations 1983

 

Indeed the Agreements Regulation itself has to some extent been amended by the Electronic Communications Order 3236 (inserted as 176A Consumer Credit Act 1974) but not so far as to AUTHORISE THE OMMISSION of the Signature

 

Has this issue been tested yet?

 

Is there any case law out there that this amounts to improperly executed agreements???

 

Or that there is any authoritative case law that says a ''tick'' is sufficient for s61 and s189(1)

 

m2ae

[car2403]

This is my point!!!

 

I have posted elsewhere on this issue of whether.... '' include in the signature box information about the process or means of providing, communicating or verifying the signature made by the debtor or hirer''.....actually means that the signature itself as prescribed by s61 is not to be dispensed with BUT THAT the signature must still be included using ''a process or means of providing the signature...

In other words something to the effect of please tick here and we shall send you a copy of the ticked agreement for you to SIGN and SEND BACK

 

Anybody could have ticked that agreement and said it was signed by you.

 

I have made the point time and again that an agreement when concluded on line should really in truth be subject to contract and that when it is ticked and the button for send is pressed that a hard copy should be sent for you to sign and send back..because otherwiswise s189(1) has not in reality been complied with.

 

I think that this issue of whether a tick complies with s61 and s189(1) is deserving of a whole new thread

m2ae

 

I say the above because when you read through the SI 3236 carefully..NOWHERE in it does it actually AUTHORISE the OMISSION of a signature as required by s61 and s189(1) but only goes as far as to say that some verification process or means of providing THAT signature should be adopted.

 

The ONLY piece of legislation or Regulation that authorises the OMISSION of signatures (as far as I know ) is Cancellation of Notices and Copies of Documents Regulations 1983

 

Indeed the Agreements Regulation itself has to some extent been amended by the Electronic Communications Order 3236 (inserted as 176A Consumer Credit Act 1974) but not so far as to AUTHORISE THE OMMISSION of the Signature

 

Has this issue been tested yet?

 

Is there any case law out there that this amounts to improperly executed agreements???

 

Or that there is any authoritative case law that says a ''tick'' is sufficient for s61 and s189(1)

 

m2ae

 

I disagree.

 

It's commonly understood - in legal terms - that a signature is an undertaking to provide something in return for something. You've 'signed' the agreement by ticking the box, using the credit and repaying the debt within the terms of the agreement.

 

If you say you haven't signed the agreement, (as in you haven't, physically placed a signature on a document) then yes, that is right, but the regs allow for this and the debt is still enforceable. If they didn't e-commerce wouldn't work.

[means2anend]

Why can they not send a hard copy so that it can be properly signed after they receive a 'ticked'' version online?.it's so simple!

 

Whilst ''by an apporopriate method'' takes account of ecommerce I am a literalist and cannot see where any EXPRESS authorisation has been given for Omission of signature ...merely a method of ''facilitating'' it

 

Can you direct to established case law?...if there is any...

 

Thanks

 

m2ae

[cerberusalert]

Electronic Communications Act 2000 (c. 7)

 

Part II sec 7

[Dotty50]

I disagree.

 

It's commonly understood - in legal terms - that a signature is an undertaking to provide something in return for something. You've 'signed' the agreement by ticking the box, using the credit and repaying the debt within the terms of the agreement.

 

If you say you haven't signed the agreement, (as in you haven't, physically placed a signature on a document) then yes, that is right, but the regs allow for this and the debt is still enforceable. If they didn't e-commerce wouldn't work.

 

So does this mean that ANY application made online is enforceable? :-?

 

I have an MBNA Virgin CC and they produced a small slip with my signature, but I didn't realise it was an online application until I was in receipt of SAR.

[means2anend]

Electronic Communications Act 2000 (c. 7)

 

Part II sec 7

 

Thanks CB

 

I am aware of this ACT

 

But does this SI concentrate on Digitally Signed Certification Authorities when transmitting and authenticating that transmission or single individual signatures of the type as ' A ''signs'' CCA ONLINE' which is the context with which I was concerned about....

 

Part II

 

Section 7

 

Subsection-(3) For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that—

 

 

(a) the signature,

 

 

(b) a means of producing, communicating or verifying the signature, or

 

 

© a procedure applied to the signature,

is (either alone or in combination with other factors) a valid means of establishing the authenticity of the communication or data, the integrity of the communication or data, or both.

 

A tick on it's own with nothing more is insufficient according to the above....Indeed if a tick WAS all that was needed then WHY HAVE the certified requirements above in addition to a tick....

 

How many agreements concluded on line actually follow this...AND DOTTY above calls them A/F's...well in the absence of the above I would also call them Application Forms AND NOT EXECUTED AGREEMENTS!!!!!!!

 

And my earlier concern was that a mere tick can be done by anyone.(and facilitate a fraud).A certificated Statement is a requirement and.AUTHENTICITY & INTEGRITY appear to be THE Objectives'

 

That statement as I mentuined in my earlier concerns could take the form in a hard copy sent subequently by lender to debtor and countersigned and sent back complying with s61 and s189(1) and s62

 

I think when looking at the legislation in context with the practice above and other related legislation they all make sense when interpreted this way because they all then complement each other and work as a unit

 

m2ae

Edited July 12, 2010 by means2anend
SI to ACT

[means2anend]

Indeed in principle one can never be accepted by the Lender at ''the first attempt'' as further checks need to be carried out in relation to identity .....bank details...wage slips etc...and so to say that one is bound by this application form is very wrong as these are just preliminary checks to abide with principle of responsible lending....BEFORE a BINDING AGREEMENT takes place

Edited July 12, 2010 by means2anend

[Dotty50]

Indeed in principle one can never be accepted by the Lender at ''the first attempt'' as further checks need to be carried out in relation to identity .....bank details...wage slips etc...and so to say that one is bound by this application form is very wrong as these are just preliminary checks to abide with principle of responsible lending....BEFORE a BINDING AGREEMENT takes place

 

Trouble is, a lot of the systems would have done automatic underwriting, so if you had an A1 credit history, you are confirmed on the voters roll, the application would have sailed through and indeed mine did.

 

Different story now though!

 

I also have an Egg CC which was applied for online and I have the original CCA, they sent an agreement to me with a copy for me to sign and return and it was already executed!

[means2anend]

So does this mean that ANY application made online is enforceable? :-?

 

I have an MBNA Virgin CC and they produced a small slip with my signature, but I didn't realise it was an online application until I was in receipt of SAR.

 

 

If they produced a small slip with your signature they realised a tick alone was not enough!!!

 

But how did they get your signature???

 

m2ae

[means2anend]

Trouble is, a lot of the systems would have done automatic underwriting, so if you had an A1 credit history, you are confirmed on the voters roll, the application would have sailed through and indeed mine did.

 

Different story now though!

 

I also have an Egg CC which was applied for online and I have the original CCA, they sent an agreement to me with a copy for me to sign and return and it was already executed!

 

 

In principle an A/F in itself when signed would not mean that there was automatically an agreement...that is a logical absurdity as that would mean that anyone who signed an A/F would merely by virtue of that A/F be accepted .

 

However that could be the case if you were ''targeted''...and yes as you mentioned above you may have been what was then termed ''Pre-Approved''...as a result of the info they had on you.

 

But also as you said in the Egg agreement online...They did indeed subsequently send you a hard copy to sign suggesting that again Egg realised a tick without more was insufficient.

 

m2ae

[Dotty50]

If they produced a small slip with your signature they realised a tick alone was not enough!!!

 

But how did they get your signature???

 

m2ae

 

Having got my magnifying glass out, it does say 'Please issue a Virgin Credit Card to me' so I guess without my signing and returning it, they would not have issued a card! Although I have read posts where it has been stated that a card was issued when they have not sent the necessary form back signed.

 

There is not a place for them to execute it but they have stamped it in the usual way that MBNA do.

 

Hopefully the fact that they have sold this on prior to the remedy date (1 day short) on the DN, then it will not ever end up in court. Fingers x!

[lexis200]

As far as I'm aware an application form can be used as an agreement though if it has all the PT's on it. Yes you are using it to apply for the credit and to see if you can get it, but they run their checks and on the back of your application approve you; ie 'once we have verified xy and z on your application your card will be sent to you.'

 

If everything is in place correctly on the application form, once they accept it becomes the agreement so to speak.

 

If they produced a small slip with your signature they realised a tick alone was not enough!!!

 

But how did they get your signature???

 

This could well depend on the age of the agreement. I have 3 egg agreements, all applied for online but all of which sent a form for me to sign as well. This was a few years back. It's quite possible that the tick online was simply so that they know to send the signature form. I know this doesn't apply to later agreements when the tick is used as your signature rather than something to say they needed to get your signature.

[fossilfinder]

Dear All,

 

I really appreciate all your views on the above, reading the SI and ECA I think they have covered themselves with the inclusion of the 'this tick is instead of your signature' statement. I wanted to clarify I am not trying to wriggle out of my debt with Egg, I am in a situation and was advised if there was an unenforceable agreement then it would give me some room to propose a Full and Final Settlement with the creditors .

 

Thank you again

 

FF

[means2anend]

Were your online agreements concluded before 31/12/04... i.e a form for you to sign in ''as well'' seems to satisfy Electronic Communications Act 2000

 

It appears that SI 3236 which came into force on 31/12/04 has allowed a tick in place of traditional signatures in favour of expediancy reflected in the phrase ''by an appropriate method''...although it is still arguable under the above because subsection 3 has not been repealed/revoked..

 

However I would argue that there is one crucial distinction BETWEEN Subsection 3 of ''THE 2000 ACT'' and SI 3236.....

 

THE ACT is an ACT and SI is a Regulation...and subsection 3 has been set out in detail without delegating powers to Ministers to deal with...It seems that Parliament itself thought it important to deal with that subsection than to devolve it to a Ministerial Department.

 

A Minister or Secretary of State cannot go beyond his/her powers and alter what an Act of Parliament has required.....is it possible that by allowing just a tick without more, the Minister responsible has gone beyond the Purpose and Intent of 'The Act'...it appears that Parliaments intent ( it's objectives in the subsection are Authenticity and Integrity) has been 'modified' by the Minister responsible for the Electronic Communications Order 2004/3236...for Expediancy...which more notable caggers have stated in the past that this seems to be the downfall of greedy bankers when required to fill out the proper paperwork in a rush to get the debtor ''signed up''

 

AND..so for these reasons car2403 I disagree with you above.

 

This may also fall to be a Constitutional question?

 

m2ae

Edited July 13, 2010 by means2anend

[supasnooper]

You may disagree with car2403, but unfortunately the link posted is the correct legal point.

 

Sorry M2AE........... I think you'd get stuffed, trussed, hung, drawn and quartered by a Consumer credit law savvy Judge if you debated your point.......... a very expensive mistake to make !!

[means2anend]

I have just looked at S8 of that ACT and it does NOT give the Secretary of State the power to modify ss3 of S7...S8 says ''subject to SS3''.....then it goes on to say what purposes the Secretary Of State CAN modify any subsequent enactment or legislation for and it does NOT include ss3...So it appears quite clear on the wording that some form of certificate or statement must be given to authenticate and secure the integrity of the communication instead of JUST a mere placing of a tick

 

Supasnooper and car2403 whilst I respect your input...what is the reasoning behind your decision pls back it up and I may be convinced but as it stands I say what I read and see.

 

m2ae

Edited July 13, 2010 by means2anend

[pt2537]

the simple answer to online applications is this

 

Before 31-12-2004 if the lender allowed the agreement to conclude online it is not likely to be enforceable

[Dotty50]

That's what I like PT simple answers, I understand them more easily!

[means2anend]

Pt2537

 

Thanks for your input

 

Can you point to specific legislation that expressly authorises the omission of a signature in online transactions or even better any possible case law.I would be happy to swat up on it.I possess an open mind and if the evidence points to what you all say then I shall seriously take note.But in the absence of that I am still not convinced from reading that that's the case.

 

I am totally in agreement pre 31/12/04...but has SI 3236 really affected S7 (3) post 31/12/2004.

 

Rgds

 

m2ae

[pt2537]

ok

 

This is the order that allows for agreements to be concluded on line.

 

The Consumer Credit Act 1974 (Electronic Communications) Order 2004 (No. 3236) - Statute Law Database

 

as for the omission of the signature box, iti s dealt with within the Consumer Credit Cancellation Notices and Copies of Docs Regulations 1983

 

And also Carey dealt with this point, electronic sig is no different from a hand written one

[means2anend]

Thanks

 

But...''if the electronic signature is no different from a handwritten one'' why the differring treatment and why then in S7 (3) does the 2000 Act require something more than just a tick such as a certificate or a statement before or after the communication is made?

 

m2ae

[car2403]

M2AE, I think you're getting confused. I'll try to explain. I did say try...

 

The 2000 Act you're referring to was enacted to implement the EU Electronic Commerce Directive 2000, to encourage online commerce. There are no constitutional questions raised by it, as you suggest, as the Directive can't be implemented in to UK law without an Act of Parliament. The Doctrine of Parliamentary Sovereignty means that Parliament makes our law, via Acts, not the EU. Without an Act of Parliament, EU Law wouldn't apply in the UK. (Moot point, it would apply, but would be applied by a Judge, reading it in line with EU Directives, had Parliament not enacted it - Parliament did, so we don't need to cover that here. Plus it's probably for another thread )

 

There's a lot more on this, here;

 

http://www.dti.gov.uk/files/file23061.pdf

 

HTH

[cerberusalert]

Select committee on Trade and Industry minutes of evidence

(1996 Legislative working party)

 

2. The working party looked at the legal issues regarding the terms document, writing, signature, instrument, and records of transactions and originality. The Government's current proposed legislation focuses particularly upon the issue of signature. The working party considered the leading case in English law on signature methods, Goodman -v- J Eban Limited. That decision established that:

 

2.1 mechanical signatures using rubber stamps, printing or typewriting were valid in english law;

2.2 a signature can be by a mark rather than a name as long as evidence can be given to indentify the placer of the mark and the intention to sign; and

2.3 words other than a name can amount to a signature if the necessary intention to sign can be proven

 

Now although this working party was looking into the Electronics Commerce Bill it points to . .

 

Goodman v J Eban Ltd (1954)

 

A solicitor signed a solicitors bill with a rubber stamp which contained the name of the law firm. In the judgment it was determined that the rubber stamp was a valid signature, even theough the Solicitors Act of 1932 required a solicitors bill to be signed; it was established that it is enough to demonstrate that the rubber stamp was affixed by the solicitor with the intention to sign the solicitor's bill.

 

So now taking the highlights above I go to:

 

Interpretations act 1978

 

Schedule 1

 

1973 c.37.

 

"Writing" includes typing, lithograpgy, photography or other modes of representing or reproducing words in a visible form and expressions refering to writing can be construed accordingly".

[means2anend]

car2403,Pt2637 and Cerberusalert...Thanks!

 

pdf file and Goodman case law..just what I was looking for thank you

 

I'll be busy reading the info you have provided...

 

Rgds

 

m2ae:)

Edited July 13, 2010 by means2anend

[citizenB]

Post by mj4j200 has been moved to a thread of its own.

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/267913-mj4j200-halifax-question.html

 

In the Halifax forums.