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Is It Time to Reform the Counter-terrorist Financing Reporting Obligations? On the EU and the UK System
- Nicholas Ryder
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- German Law Journal / Volume 19 / Issue 5 / October 2018
- Published online by Cambridge University Press:
- 06 March 2019, pp. 1169-1189
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This Article critically considers the effectiveness of the European Union's (EU) counter-terrorist financing (CTF) strategies. In particular, it concentrates on the use of financial intelligence gathered from the submission of suspicious activity reports (SARs) by reporting entities to Member States Financial Intelligence Units (FIU). The Article identifies a series of weaknesses in the United Kingdom's (UK) reporting regime: Defensive reporting, increased compliance costs, and the definition of suspicion. It concludes by making a series of recommendations that are aimed at improving the effectiveness of the EU and UK CTF reporting obligations.
Contributors
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- By Mitchell Aboulafia, Frederick Adams, Marilyn McCord Adams, Robert M. Adams, Laird Addis, James W. Allard, David Allison, William P. Alston, Karl Ameriks, C. Anthony Anderson, David Leech Anderson, Lanier Anderson, Roger Ariew, David Armstrong, Denis G. Arnold, E. J. Ashworth, Margaret Atherton, Robin Attfield, Bruce Aune, Edward Wilson Averill, Jody Azzouni, Kent Bach, Andrew Bailey, Lynne Rudder Baker, Thomas R. Baldwin, Jon Barwise, George Bealer, William Bechtel, Lawrence C. Becker, Mark A. Bedau, Ernst Behler, José A. Benardete, Ermanno Bencivenga, Jan Berg, Michael Bergmann, Robert L. Bernasconi, Sven Bernecker, Bernard Berofsky, Rod Bertolet, Charles J. Beyer, Christian Beyer, Joseph Bien, Joseph Bien, Peg Birmingham, Ivan Boh, James Bohman, Daniel Bonevac, Laurence BonJour, William J. Bouwsma, Raymond D. Bradley, Myles Brand, Richard B. Brandt, Michael E. Bratman, Stephen E. Braude, Daniel Breazeale, Angela Breitenbach, Jason Bridges, David O. Brink, Gordon G. Brittan, Justin Broackes, Dan W. Brock, Aaron Bronfman, Jeffrey E. Brower, Bartosz Brozek, Anthony Brueckner, Jeffrey Bub, Lara Buchak, Otavio Bueno, Ann E. Bumpus, Robert W. Burch, John Burgess, Arthur W. Burks, Panayot Butchvarov, Robert E. Butts, Marina Bykova, Patrick Byrne, David Carr, Noël Carroll, Edward S. Casey, Victor Caston, Victor Caston, Albert Casullo, Robert L. Causey, Alan K. L. Chan, Ruth Chang, Deen K. Chatterjee, Andrew Chignell, Roderick M. Chisholm, Kelly J. Clark, E. J. Coffman, Robin Collins, Brian P. Copenhaver, John Corcoran, John Cottingham, Roger Crisp, Frederick J. Crosson, Antonio S. Cua, Phillip D. Cummins, Martin Curd, Adam Cureton, Andrew Cutrofello, Stephen Darwall, Paul Sheldon Davies, Wayne A. Davis, Timothy Joseph Day, Claudio de Almeida, Mario De Caro, Mario De Caro, John Deigh, C. F. Delaney, Daniel C. Dennett, Michael R. DePaul, Michael Detlefsen, Daniel Trent Devereux, Philip E. Devine, John M. Dillon, Martin C. Dillon, Robert DiSalle, Mary Domski, Alan Donagan, Paul Draper, Fred Dretske, Mircea Dumitru, Wilhelm Dupré, Gerald Dworkin, John Earman, Ellery Eells, Catherine Z. Elgin, Berent Enç, Ronald P. Endicott, Edward Erwin, John Etchemendy, C. Stephen Evans, Susan L. Feagin, Solomon Feferman, Richard Feldman, Arthur Fine, Maurice A. Finocchiaro, William FitzPatrick, Richard E. Flathman, Gvozden Flego, Richard Foley, Graeme Forbes, Rainer Forst, Malcolm R. Forster, Daniel Fouke, Patrick Francken, Samuel Freeman, Elizabeth Fricker, Miranda Fricker, Michael Friedman, Michael Fuerstein, Richard A. Fumerton, Alan Gabbey, Pieranna Garavaso, Daniel Garber, Jorge L. A. Garcia, Robert K. Garcia, Don Garrett, Philip Gasper, Gerald Gaus, Berys Gaut, Bernard Gert, Roger F. Gibson, Cody Gilmore, Carl Ginet, Alan H. Goldman, Alvin I. Goldman, Alfonso Gömez-Lobo, Lenn E. Goodman, Robert M. Gordon, Stefan Gosepath, Jorge J. E. Gracia, Daniel W. Graham, George A. Graham, Peter J. Graham, Richard E. Grandy, I. Grattan-Guinness, John Greco, Philip T. Grier, Nicholas Griffin, Nicholas Griffin, David A. Griffiths, Paul J. Griffiths, Stephen R. Grimm, Charles L. Griswold, Charles B. Guignon, Pete A. Y. Gunter, Dimitri Gutas, Gary Gutting, Paul Guyer, Kwame Gyekye, Oscar A. Haac, Raul Hakli, Raul Hakli, Michael Hallett, Edward C. Halper, Jean Hampton, R. James Hankinson, K. R. Hanley, Russell Hardin, Robert M. Harnish, William Harper, David Harrah, Kevin Hart, Ali Hasan, William Hasker, John Haugeland, Roger Hausheer, William Heald, Peter Heath, Richard Heck, John F. Heil, Vincent F. Hendricks, Stephen Hetherington, Francis Heylighen, Kathleen Marie Higgins, Risto Hilpinen, Harold T. Hodes, Joshua Hoffman, Alan Holland, Robert L. Holmes, Richard Holton, Brad W. Hooker, Terence E. Horgan, Tamara Horowitz, Paul Horwich, Vittorio Hösle, Paul Hoβfeld, Daniel Howard-Snyder, Frances Howard-Snyder, Anne Hudson, Deal W. Hudson, Carl A. Huffman, David L. 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Quinn, Philip L. Quinn, Elizabeth S. Radcliffe, Diana Raffman, Gerard Raulet, Stephen L. Read, Andrews Reath, Andrew Reisner, Nicholas Rescher, Henry S. Richardson, Robert C. Richardson, Thomas Ricketts, Wayne D. Riggs, Mark Roberts, Robert C. Roberts, Luke Robinson, Alexander Rosenberg, Gary Rosenkranz, Bernice Glatzer Rosenthal, Adina L. Roskies, William L. Rowe, T. M. Rudavsky, Michael Ruse, Bruce Russell, Lilly-Marlene Russow, Dan Ryder, R. M. Sainsbury, Joseph Salerno, Nathan Salmon, Wesley C. Salmon, Constantine Sandis, David H. Sanford, Marco Santambrogio, David Sapire, Ruth A. Saunders, Geoffrey Sayre-McCord, Charles Sayward, James P. Scanlan, Richard Schacht, Tamar Schapiro, Frederick F. Schmitt, Jerome B. Schneewind, Calvin O. Schrag, Alan D. Schrift, George F. Schumm, Jean-Loup Seban, David N. Sedley, Kenneth Seeskin, Krister Segerberg, Charlene Haddock Seigfried, Dennis M. Senchuk, James F. Sennett, William Lad Sessions, Stewart Shapiro, Tommie Shelby, Donald W. Sherburne, Christopher Shields, Roger A. Shiner, Sydney Shoemaker, Robert K. Shope, Kwong-loi Shun, Wilfried Sieg, A. John Simmons, Robert L. Simon, Marcus G. Singer, Georgette Sinkler, Walter Sinnott-Armstrong, Matti T. Sintonen, Lawrence Sklar, Brian Skyrms, Robert C. Sleigh, Michael Anthony Slote, Hans Sluga, Barry Smith, Michael Smith, Robin Smith, Robert Sokolowski, Robert C. Solomon, Marta Soniewicka, Philip Soper, Ernest Sosa, Nicholas Southwood, Paul Vincent Spade, T. L. S. Sprigge, Eric O. Springsted, George J. Stack, Rebecca Stangl, Jason Stanley, Florian Steinberger, Sören Stenlund, Christopher Stephens, James P. Sterba, Josef Stern, Matthias Steup, M. A. Stewart, Leopold Stubenberg, Edith Dudley Sulla, Frederick Suppe, Jere Paul Surber, David George Sussman, Sigrún Svavarsdóttir, Zeno G. Swijtink, Richard Swinburne, Charles C. Taliaferro, Robert B. Talisse, John Tasioulas, Paul Teller, Larry S. Temkin, Mark Textor, H. S. Thayer, Peter Thielke, Alan Thomas, Amie L. 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Wolterstorff, Rega Wood, W. Jay Wood, Paul Woodruff, Alison Wylie, Gideon Yaffe, Takashi Yagisawa, Yutaka Yamamoto, Keith E. Yandell, Xiaomei Yang, Dean Zimmerman, Günter Zoller, Catherine Zuckert, Michael Zuckert, Jack A. Zupko (J.A.Z.)
- Edited by Robert Audi, University of Notre Dame, Indiana
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Part 4 - Tortious Liability for Defective Products
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Commercial Law
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- 05 August 2012
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- 14 June 2012, pp 271-272
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Summary
Introduction
Part 4 looks at the tortious liability of traders and the rights of users in respect of product-related injuries. The law of tort is, of course, a far wider topic than liability for faulty products, encompassing negligence, trespass and defamation, amongst other areas. However, the parameters of tort as discussed here are limited to tortious liabilities and actions arising from the production of faulty products.
Part 4 is divided into two chapters, the first looking briefly at the law of negligence before moving on to consider the move towards strict product liability, initially in the United States and, since the 1970s, in Europe. This movement in Europe stemmed from three different sources: the United Kingdom, the Strasbourg Convention and, finally, the EC Directive which overtook both of the other two. The second chapter looks expressly at the regime of strict product liability under Part I of the Consumer Protection Act 1987, which gave effect to the EC Directive in the United Kingdom.
Frontmatter
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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Part 5 Chapter 3 - Business Protection from Misleading Marketing
- from Part 5 - Unfair Commercial Practices
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Commercial Law
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- 05 August 2012
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- 14 June 2012, pp 393-404
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Summary
Introduction
If traders are to compete in a fair market, it is important to ensure that there are comprehensive and effective controls over both misleading and comparative advertising.
This chapter looks at the current controls over misleading advertising as it affects business purchasers and, also, at the latest legal controls over comparative advertising whereby traders are permitted to include reference to competitors in their advertisements subject to satisfying certain controls.
Section 2 includes a brief background to the issue of misleading and comparative advertising and details the genesis of the current provisions. Section 3 considers the controls over misleading advertisements including: the remit of the controls and the situations that they are designed to cover, and the definition of the phrase ‘misleading advertisements’ and the criteria upon which it depends.
Section 4 considers the new controls over comparative advertising and addresses: the remit of the controls and the criteria that must be satisfied if a comparative advertisement is to be legal. Section 5 considers the prohibition of misleading or comparative advertising by code owners.
Part 3 Chapter 1 - Standard Trade Terms
- from Part 3 - International Trade and Sales
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Commercial Law
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- 05 August 2012
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- 14 June 2012, pp 183-196
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Summary
Introduction
Standard trade terms have long been used by tradesmen to establish the duties of the buyer and seller. This chapter will examine two of the main standard trade terms in use in international trade, mainly CIF (cost, insurance, freight) and FOB (free on board). We will also examine variants of these terms, as well as the relevance of INCOTERMS, a series of commercial terms developed and published by the International Chamber of Commerce (ICC), which are widely used in international commercial transactions. First published in 1936, the latest set of these rules was published in 2010.
CIF contracts
As stated above, CIF contracts have long been part of the mainstream of international sales transactions. In Ross T Smyth & Co. Ltd v. TD Bailey, Son & Co. Ltd Lord Wright summarises the characteristics of a CIF contract as follows:
the price is to include cost, insurance and freight. It is a type of contract which is more widely and more frequently in use than any other contract used for purposes of seaborne commerce. An enormous number of transactions, in value amounting to untold sums, are carried out every year under cif contracts. The essential characteristics of this contract have often been described. The seller has to ship or acquire after that shipment the contract goods, as to which if unascertained he is generally required to give a notice of appropriation. On or after shipment he has to obtain proper bills of lading and proper policies of insurance. He fulfils his contract by transferring the bills of lading and the policies to the buyer. As a general rule he does so only against payment of the price, less the freight, which the buyer has to pay. In the invoice which accompanies the tender of the documents on the ‘prompt’, that is, the date fixed for payment, the freight is deducted for this reason. In this course of business the general property in the goods remains in the seller until he transfers the bills of lading.
Part 7 - Consumer Credit
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Commercial Law
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- 05 August 2012
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- 14 June 2012, pp 495-496
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Summary
Introduction
The seventh part of this book deals with consumer credit and is divided into two chapters. The first chapter outlines how the relaxation of the consumer credit legislative frameworks resulted in an increase in the availability of ‘convenient credit’, which is defined as ‘credit that is granted by the creditor with little or no reference to the creditworthiness of the debtor’. This chapter identifies several problems that have arisen from access to ‘convenient credit’, including record levels of consumer debt, financial exclusion and over-indebtedness; an increase in irresponsible lending practices and ineffective legislative protection of consumers. These have contributed towards a dramatic U-turn by the government towards promoting access to ‘affordable credit’. Affordable credit contains five basic elements: access to loans that are simple and transparent; lenders that are sympathetic towards low income consumers’ circumstances; simple loan application procedures; small loans over a short period of time; and affordable repayments. Chapter 1 then identifies several government initiatives aimed at promoting access to affordable credit, including the creation of the Social Exclusion Unit, the promotion of credit unions, the development of the Saving Gateway and the Financial Inclusion Fund.
Table of Cases
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- 14 June 2012, pp xlvii-lvi
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Table of Statutory Provisions
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- 14 June 2012, pp xvii-xlvi
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Part 5 Chapter 1 - Policy on Unfair Commercial Practices
- from Part 5 - Unfair Commercial Practices
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- 05 August 2012
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- 14 June 2012, pp 335-349
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Summary
Introduction
This chapter analyses the policy behind the use of criminal law controls and, more latterly, civil law enforcement to control unfair trading practices which have a negative impact on the trading framework within which both business purchasers and consumer buyers acquire goods and services. It addresses the controls previously and currently in place that protect these two disparate groups of purchasers. It is structured as follows
Section 2 provides a background to this topic and looks at the way that the law has recently developed and the introduction of two new sets of Regulations, the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008.
Section 3 analyses the enforcement strategy that underpins the enforcement of both of these sets of Regulations, while Section 4 looks at the criminal law controls that are in place for both sets of Regulations. The first part of the section details the criminal law offences contained in the two sets of Regulations and identifies which offences require proof of mens rea and which are strict liability offences. The second part of the section considers the statutory defences that are open to someone charged with an offence contrary to either set of Regulations, with particular reference to the parameters of the due diligence defence and the defence of ‘innocent publication’. The section concludes by looking at the liability of ‘another person’ for offences against the Regulations.
Part 5 - Unfair Commercial Practices
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Commercial Law
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- 05 August 2012
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- 14 June 2012, pp 333-334
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Summary
Introduction
Part 5 concentrates on those aspects of the criminal law which provide the framework to the everyday trading environment. In practice, criminal law plays an important, but often under-valued, role in trading matters. The tendency is to concentrate on civil law controls and remedies for matters such as breaches of sale of goods and product liability without addressing the role that compliance with criminal law can play in preventing incidents arising. This part seeks to redress that balance somewhat.
Part 5 is divided into three chapters. The first deals with the policy that lies behind the repeal and amendment of so much of the pre-existing criminal trading law. Particular reference is made to the role that the European Union has played through the Unfair Commercial Practices Directive, which resulted in the passage of two sets of Regulations, the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008. The first chapter continues by looking at the offences created by the Regulations and the available defences thereto, most notably the due diligence defence.
Part 2 Chapter 4 - The Supply of Goods and Services
- from Part 2 - Sale of Goods and Services
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Commercial Law
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- 05 August 2012
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- 14 June 2012, pp 144-164
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Summary
Introduction
This chapter considers the provision of services by traders to both businesses and consumers. It looks at the information that must be provided to potential recipients of services and also the current statutory controls over the quality and fitness for purpose of services provided under a contract.
Section 2 looks at the background to the provision of services and the ambit and limitations to contracts for services.
Section 3 looks in detail at the Provision of Services Regulations 2009 which stipulate what information must be provided to potential recipients of services and the requirement for a suitable complaints system to be established, including authorisation schemes; the provision of information to service recipients; the definition of ‘service’; the definition of ‘provider’ and ‘recipient’; Part 2 of the 2009 Regulations; the information that must be provided under regulation 8; information to be provided on request; information regarding dispute resolution; complaints; and enforcement.
Section 4 looks in detail at the provisions of the Supply of Goods and Services Act 1982 incorporating the current implied conditions and terms relating to the provision of contracts for goods and services, including implied conditions under Part I of the 1982 Act; the common law approach; the implied terms regarding care and skill, time for performance and consideration; exclusion of liability; and Codes of Practice.
Bibliography
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- 14 June 2012, pp 559-580
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Part 7 Chapter 2 - The Consumer Credit Act 1974
- from Part 7 - Consumer Credit
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- 14 June 2012, pp 522-558
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Summary
Introduction
This chapter begins by briefly highlighting and commenting on the importance of the recommendations of the Crowther Committee on Consumer Credit 1971 and how it influenced the enactment of the Consumer Credit Act (CCA) 1974. The second part of the chapter provides a general discussion of the aims and objectives of the CCA 1974 and comments on its scope and application. It then provides an overview of the interpretation of several important concepts and terms within the Act. The remainder of the chapter provides a detailed discussion of the Act’s main provisions and highlights the significant amendments introduced by the Consumer Credit Act (CCA) 2006. The latter part of the chapter considers the role and scope of the Financial Ombudsman Service (FOS), the increased enforcement powers of the Office of Fair Trading (OFT) and the impact of the Consumer Credit Directive.
Crowther Committee on Consumer Credit
The introduction of the CCA 1974 is associated with the recommendations of the Crowther Committee, which in 1968 was given the broad remit to investigate and explore all forms of credit. The Committee identified several weaknesses within the then-existing consumer credit legislative framework, and it recommended the introduction of two statutes, a Lending and Security Act and a Consumer Sale and Loan Act. The proposed Lending and Security Act would ‘apply to all credit transactions … it would deal not just with the rights of the parties under the loan contract, but also with registration of the security interest and conflicts between the secured party and any third party’. Macleod commented that this recommendation ‘would fuse together all the various existing forms of legislation relating to consumer credit into one rationally coherent enactment’. However, the proposal to implement a Lending and Security Act was not acted on due to its complex nature and high cost implications, and the recommendation to introduce a Consumer Sale and Loan Act resulted in the implementation of the CCA 1974 as the ‘basis of regulation for consumer credit’. It is important to note that the principal objective of the recommendations was to provide consumers with a higher level of protection, as discussed in Part 7 Chapter 1.
Part 7 Chapter 1 - The Government’s Policy towards Consumer Credit
- from Part 7 - Consumer Credit
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Commercial Law
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- 05 August 2012
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- 14 June 2012, pp 497-521
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Summary
Introduction
Since the introduction of the first credit card in 1966, the influential recommendations of the Crowther Committee on Consumer Credit (1971) and the introduction of the Consumer Credit Act 1974, creditors now allow debtors to access credit twenty-four hours a day and 365 days a year. The number of creditors and credit products has grown at an unprecedented rate. The evolution of the credit market was hastened by the deregulation of consumer credit legislation in the 1980s and 1990s. This chapter outlines how the relaxation of the consumer credit legislative frameworks resulted in an increase in the availability of ‘convenient credit’, which is defined as ‘credit that is granted by the creditor with little or no reference to the creditworthiness of the debtor’. This chapter identifies several problems that have arisen from access to ‘convenient credit’ (record levels of consumer debt, financial exclusion and over-indebtedness, an increase in irresponsible lending practices and ineffective legislative protection of consumers), which has resulted in a dramatic U-turn by the government towards promoting access to ‘affordable credit’. Affordable credit comprises five basic elements: (i) access to loans that are simple and transparent; (ii) lenders that are sympathetic towards low income consumers’ circumstances; (iii) simple loan application procedures; (iv) small loans over a short period of time; and (v) affordable repayments. The chapter identifies several government initiatives aimed at promoting access to affordable credit, including the creation of the Social Exclusion Unit (SEU), the promotion of credit unions, the development of Saving Gateway and the Financial Inclusion Fund.
Part 1 Chapter 1 - Agency
- from Part 1 - Agency
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Commercial Law
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- 05 August 2012
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- 14 June 2012, pp 3-13
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Summary
Introduction
Part 1 considers one of most important and traditional aspects of any commercial law undergraduate course, the law of agency. Chapter 1 begins by attempting to define the law of agency by providing several examples from commercial law scholars, illustrating the difficulty experienced by the courts in England and Wales in defining the term ‘agency’. The next part of the chapter deals with the nature and characteristics of agency, followed by a brief outline of the different types of agents that exist in the United Kingdom.
What is agency?
It is virtually impossible to provide a clear all-embracing definition of agency. Rather unsurprisingly this has resulted in many commentators arguing that the courts have given it an extremely broad and flexible interpretation. The breadth of the interpretation of the term ‘agency’ is illustrated by the following quotation from an article by Gorton:
In law the concept of ‘agency’ may have different meanings. Whereas in common law ‘agency’ is a wide concept covering the law related to ‘authority’ and ‘power to bind’, the agent in, e.g. Scandinavian law is a particular kind of intermediary. In English law the concept of ‘agent’ may appear in different contexts: ‘commercial agent’, ‘general agent’, ‘del credere agent’, agent of necessity’.
Part 6 Chapter 2 - Banking and Finance Law
- from Part 6 - Banking and Finance Law
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Commercial Law
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- 05 August 2012
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- 14 June 2012, pp 439-461
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Summary
Introduction
The purpose of this chapter is to provide a detailed overview of the law relating to banks. The chapter begins by attempting to answer what in theory should be a very simple question. What is a bank? However, it will become clear that this is quite a difficult question to answer. The chapter goes on to define a customer and then progresses to highlight the very complicated relationship between a bank and its customers. Particular attention is paid to the duties a bank owes to its customers, including the duty of confidentiality. The chapter also outlines the different types of bank accounts offered to customers and deals with some of the legal issues relating to cheques, e-banking and the regulation of bank accounts.
What is a bank?
The first question faced by students studying the law relating to banks is how do you define a bank? This is not an easy question to answer, a point raised by Wadsley and Penn, who took the view that:
[The question is] notoriously difficult to answer. The question has become much harder to answer in recent years, with the advent of telephone and Internet banking as well as banks in supermarkets. The traditional idea of a bank with many local branches dealing with customers face to face (core retail banking) seems odd and out of date.
Part 2 Chapter 3 - The Passage of Title, Delivery and Payment
- from Part 2 - Sale of Goods and Services
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Book:
- Commercial Law
- Published online:
- 05 August 2012
- Print publication:
- 14 June 2012, pp 114-143
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Summary
Introduction
This chapter considers the issues surrounding the passage of property and risk in goods and the various rules that dictate when the title to the goods moves from the seller to the buyer, a factor that becomes crucial when determining who owns the goods if one of the parties becomes insolvent or the goods are damaged. Allied to this, the chapter also looks at the related topics of the delivery of and payment for goods.
Section 2 provides a background to the topic of the passage of property to goods and the related issue of the passage of risk which dictates who will have to bear the loss if the goods are damaged or destroyed.
Section 3 looks in detail at the rules relating to the passage of property to goods and the statutory rules that exist to determine when the title will pass if the contracting parties have not expressly agreed the matter in the contract. In particular, it looks at Sale of Goods Act 1979, section 17; the section 18 rules; section 19 on reservation of title clauses; and undivided shares in a bulk.
Section 4 considers the passage of risk to the goods and the relationship between the passage of property and the passage of risk.
Section 5 looks at the nemo dat exceptions, i.e., those situations in which a seller of goods who has no title to them can nonetheless pass a valid title to those goods to an innocent third party buyer. In particular, it looks at several of the recognised statutory nemo dat exceptions, namely, estoppel; mercantile agent; seller in possession; buyer in possession; Hire-Purchase Act 1964, s.27; voidable title; sale under court order; and market overt.
Part 1 Chapter 3 - Relations between a Principal and Agent
- from Part 1 - Agency
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Book:
- Commercial Law
- Published online:
- 05 August 2012
- Print publication:
- 14 June 2012, pp 28-58
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Summary
Introduction
The purpose of this chapter is to provide an overview of the legal obligations that an agent owes to his principal. These include, for example, the duty to carry out contractual obligations; the duty to obey the principal’s instructions; that the agent must not exceed his authority; the performance of contractual duties; that the agent must exercise due care and skill; the duty not to allow any conflict of interest; the fiduciary duties, not to take a bribe or make a secret profit; and the duty to account. The chapter then outlines the rights of an agent, before moving on to discuss the implications of a disclosed agency, a situation where the third party knows of the existence of the principal, and of an undisclosed agency, a situation where the agent acts for a principal who is not disclosed to the third party. Finally, the chapter deals with termination of the agency.
Duties of an agent
An agent acting for a principal is subject to a wide range of legal obligations, which are imposed either expressly within an agency agreement or impliedly. The duties owed by an agent to his principal have been classified into two very wide categories, those that arise from the contract between the two parties, and those that arise in equity, which has a strong influence over the duties of agents. The duties imposed on an agent were succinctly summarised in Armstrong v. Jackson by McCardie J, who stated:
The position of principal and agent gives rise to particular and onerous duties on the part of the agent, and the high standard of conduct required from him springs from the fiduciary relationship between his employer and himself. His position is confidential. It readily lends itself to abuse. A strict and salutary rule is required to meet the special situation. The rules of English law as they now exist spring from the strictness originally required by Courts of Equity in cases where the fiduciary relationship exists.
Part 1 Chapter 2 - The Authority of an Agent
- from Part 1 - Agency
- Nicholas Ryder, University of the West of England, Bristol, Margaret Griffiths, University of Glamorgan, Lachmi Singh, University of the West of England, Bristol
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- Book:
- Commercial Law
- Published online:
- 05 August 2012
- Print publication:
- 14 June 2012, pp 14-27
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Summary
Introduction
The purpose of Part 1 Chapter 2 is to provide a detailed commentary on the different types of authority that relate to an agency agreement, including actual authority.
The authority of an agent
Chapter 1 highlighted the problems associated with defining the terms ‘agent’ and ‘agency’. Somewhat unsurprisingly, the same problem arises with respect to the different categories of authority. Bradgate pointed out that ‘one of the great difficulties of the law of agency is that terminology is not used consistently’. For the purposes of this chapter, we will look at actual authority (both express and implied), apparent authority and usual authority.
Actual authority
The actual authority of an agency is granted by an agreement with the principal, which could be classified either as ‘implied’ or ‘express’ authority. This was a point famously referred to by Lord Denning MR in Hely-Hutchinson v. Brayhead Ltd:
actual authority may be express or implied. It is express when it is given by words, such as when a board of directors pass a resolution which authorises two of their number to sign cheques. It is implied when it is inferred from the conduct of the parties and the circumstances of the case, such as when the board of directors appoint one of their number to be managing director. They thereby impliedly authorise him to do all such things as fall within the usual scope of his office.