Equitable Remedy

paddypowder

short version of an event

My friend didn't pay her mobile phone bill due to whatever reason and her phone was cut off a week later

when she called them up they told her that her contract had a further 14 months remaining and that she would be charged accordingly and that they would resume her service with in a few hours of her payment being received.

but I was just wondering if the person refused to pay their phone bill due to whatever reason and the phone company was not providing a service to that person would she be liable to pay the remaining months?

From my understanding the Irish courts do not look favourably on punishment clauses for contract breach.


surely a person would be entitled to their service and then liable to the service provided?
you surely cannot charge somebody 3 or 4 months worth of a contract despite having suspended the actual service you are charging for

it is certainly not fair to do so.

anyway

are there any arguments you have in support or against this line of thinking

please not just against (ie. you signed contract with explicit terms etc)

Valetta

You have used the term "for whatever reason" twice in your post in relation to non-payment.

I would have thought the reason would be critical to the outcome of any such dispute.

Otherwise why have a contract at all?

Pro Hoc Vice

paddypowder wrote: »

short version of an event

My friend didn't pay her mobile phone bill due to whatever reason and her phone was cut off a week later

when she called them up they told her that her contract had a further 14 months remaining and that she would be charged accordingly and that they would resume her service with in a few hours of her payment being received.

but I was just wondering if the person refused to pay their phone bill due to whatever reason and the phone company was not providing a service to that person would she be liable to pay the remaining months?

From my understanding the Irish courts do not look favourably on punishment clauses for contract breach.


surely a person would be entitled to their service and then liable to the service provided?
you surely cannot charge somebody 3 or 4 months worth of a contract despite having suspended the actual service you are charging for

it is certainly not fair to do so.

anyway

are there any arguments you have in support or against this line of thinking

please not just against (ie. you signed contract with explicit terms etc)

Sorry to say its simple contract law, the phone company will reconnect the person on payment of the bill and the contract will continue, there would be serious public policy issues if the only thing you needed to get out of a contract was not to pay the bill. The person has 2 choices 1 pay the bill and continue with the contract or 2 fight the company with nothing I can see in the OP to support any claim or defence as against the phone company.

I assume the phone company are willing and able to complete the contract if the user is willing to keep up their end of the bargain.

paddypowder

Well as I said "for whatever ever reason" I actually don't know her reason and didn't ask .

But for arguments sake lets say a person is in financial difficulty...
As opposed to simply unwilling to pay the bill

Do you feel a persons ability to pay should have an affect on this situation given the actions of the phone company?

If a phone company can just cut your service and continue to charge for it... How can that be valid?
Where's the consideration. And on what grounds would the company be able to persue the customer for renumeration?

paddypowder

Pro Hoc Vice wrote: »

Sorry to say its simple contract law, the phone company will reconnect the person on payment of the bill and the contract will continue, there would be serious public policy issues if the only thing you needed to get out of a contract was not to pay the bill. The person has 2 choices 1 pay the bill and continue with the contract or 2 fight the company with nothing I can see in the OP to support any claim or defence as against the phone company.

I assume the phone company are willing and able to complete the contract if the user is willing to keep up their end of the bargain.

Yes but the contract is money in exchange for service... How can a company cut a service and then expect to charge for it..

Are you saying it should all be suspended until payment is received for example
Bill owed for January... Service stopped in February march April May. Bill payed and contract resumes from June.. Extending the contract a further 4 months as a deferral for 4months?

Or do you feel the consumer should be liable to pay for February March April May despite no service being provided .

Arbiter of Good Taste

paddypowder wrote: »

Yes but the contract is money in exchange for service... How can a company cut a service and then expect to charge for it..

Are you saying it should all be suspended until payment is received for example
Bill owed for January... Service stopped in February April May. Bill payed and contract resumes from June.. Extending the contract a further 4 months as a deferral for 3months?

Or do you feel the consumer should be liable to pay for February March April May despite no service being provided .

The penalty is to compensate the phone company for loss of revenue. I can't see what the phone company has done wrong in this scenario, so why should they be penalised because someone is unable or unwilling to pay.

Pro Hoc Vice

paddypowder wrote: »

Yes but the contract is money in exchange for service... How can a company cut a service and then expect to charge for it..

Are you saying it should all be suspended until payment is received for example
Bill owed for January... Service stopped in February march April May. Bill payed and contract resumes from June.. Extending the contract a further 4 months as a deferral for 4months?

Or do you feel the consumer should be liable to pay for February March April May despite no service being provided .

The contract is for a service for 12 18 or 24 months, a term is that each month the customer will pay the bill, the customer has broken the contract and it is easily fixed (pay the bill) the company is under no obligation to provide service to a person who does not pay, but the customer is liable in contract to pay the agreed amount till the end of the bill, while it may not seem fair its legal.

Pro Hoc Vice

paddypowder wrote: »

Well as I said "for whatever ever reason" I actually don't know her reason and didn't ask .

But for arguments sake lets say a person is in financial difficulty...
As opposed to simply unwilling to pay the bill

Do you feel a persons ability to pay should have an affect on this situation given the actions of the phone company?

If a phone company can just cut your service and continue to charge for it... How can that be valid?
Where's the consideration. And on what grounds would the company be able to persue the customer for renumeration?

If your boss is unable to pay you would you still work, if the friend who you lent money to is unable to pay you would you lend more to him, you really have no clue about contract law, there is no avenue here no matter what your friend or you want to believe.

paddypowder

Pro Hoc Vice wrote: »

If your boss is unable to pay you would you still work, if the friend who you lent money to is unable to pay you would you lend more to him, you really have no clue about contract law, there is no avenue here no matter what your friend or you want to believe.

It's actually funny that you would speak like that.
Perhaps you actually have no clue in contract law

No Pants

Which carrier is it? Easy to take a look at their terms and conditions.
If there was a phone provided at the beginning of the contract, I presume that your friend has returned it to the carrier.

GerardKeating

paddypowder wrote: »

It's actually funny that you would speak like that.
Perhaps you actually have no clue in contract law

Seems fairly simple

• The OP (or friend thereof) willingly entered into a contract, even thought it was not required, they could have gone PAYG.
• They then decided that they could not continue with the contract, and stopped paying
• The Phone company disconnected for non-payment and offer to reconnect when their client resumes payment
• They want the OP (or friend thereof) to honour the contract they signed.

No-one is forced into contacts, there is always the PAYG option, but people want the nice shiny free new phone that comes with a contract, and seem to think that once they have used the phone and it is not new anymore, they can just hand it back.

GerardKeating

No Pants wrote: »

Which carrier is it? Easy to take a look at their terms and conditions.
If there was a phone provided at the beginning of the contract, I presume that your friend has returned it to the carrier.

But the carrier (I assume) supplied a nice shiny new phone, unblemished, scratch free, with all the original packaging.

The "friend" is returning a used second hand phone and may or may not have the original box.

No Pants

GerardKeating wrote: »

But the carrier (I assume) supplied a nice shiny new phone, unblemished, scratch free, with all the original packaging.

The "friend" is returning a used second hand phone and may or may not have the original box.

I'm thinking more along the lines that they haven't returned it at all, but good point.

CIARAN_BOYLE

Really 1/4 at most of contract phone payments for the service, the rest is really hire purchase on the phone.

While Irish law doesn't like punishment clauses this isn't really one. a punishment clause is more being cut off and your service charge rising.

Pro Hoc Vice

paddypowder wrote: »

It's actually funny that you would speak like that.
Perhaps you actually have no clue in contract law

That's right I know nothing about contract law, so tell your friend they are right and fight it all the way.

d9oiu2wk07blr5

Unfair terms in a consumer contract.

http://www.irishstatutebook.ie/1995/en/si/0027.html

http://ec.europa.eu/justice/consumer-marketing/rights-contracts/unfair-contract/index_en.htm

http://www.algoodbody.ie/knowledge.jsp?i=3296

http://www.algoodbody.ie/knowledge.jsp?i=3111

No Pants

Kamden Bitter Virtuoso wrote: »

Unfair terms in a consumer contract.

http://www.irishstatutebook.ie/1995/en/si/0027.html

http://ec.europa.eu/justice/consumer-marketing/rights-contracts/unfair-contract/index_en.htm

http://www.algoodbody.ie/knowledge.jsp?i=3296

http://www.algoodbody.ie/knowledge.jsp?i=3111

Hard to judge until the OP states who the carrier is and we can take a look at the Ts & Cs ourselves.

GerardKeating

Kamden Bitter Virtuoso wrote: »

Unfair terms in a consumer contract.

http://www.irishstatutebook.ie/1995/en/si/0027.html

http://ec.europa.eu/justice/consumer-marketing/rights-contracts/unfair-contract/index_en.htm

http://www.algoodbody.ie/knowledge.jsp?i=3296

http://www.algoodbody.ie/knowledge.jsp?i=3111

"Please complete the contract to the end of the pre-agreed term" hardly seems like an unfair term.

Some might say that 24/36/48/72 month contracts are unfair, but no-one has to have a contract to have a mobile device.

Bepolite

What has any of this to do with equitable remedies btw?

No Pants

GerardKeating wrote: »

"Please complete the contract to the end of the pre-agreed term" hardly seems like an unfair term.

Some might say that 24/36/48/72 month contracts are unfair, but no-one has to have a contract to have a mobile device.

While smartphones are expensive, I'd like to see some exploration of the unfairness of a 24 month+ contract for a device that may deteriorate significantly within that period. I'm thinking of battery life and the fact that it's not user-replaceable.

However, that's off-topic.

d9oiu2wk07blr5

GerardKeating wrote: »

"Please complete the contract to the end of the pre-agreed term" hardly seems like an unfair term.

Some might say that 24/36/48/72 month contracts are unfair, but no-one has to have a contract to have a mobile device.

The unfair term which has already been adjudicated on is locking someone in to a 2 and 3 year contract without the possibility of terminating in certain circumstances or at 30 days notice after year 1, creates a significant imbalance between the parties rights.

http://buckworthsolicitors.co.uk/?p=630

Pro Hoc Vice

Kamden Bitter Virtuoso wrote: »

The unfair term which has already been adjudicated on is locking someone in to a 2 and 3 year contract without the possibility of terminating in certain circumstances or at 30 days notice after year 1, creates a significant imbalance between the parties rights.

http://buckworthsolicitors.co.uk/?p=630

Yes and you do not get a heavily subsidised phone in a Gym Membership, in Ireland you can get very good 30day rolling contracts from as little as €20 a month all inclusive, you can get all inclusive pay as you go contracts from €30 a month no minimum length, you can get 12 month 18 month and 24 month contracts where the longer you sign up for the cheaper the handset and or cheaper monthly charge.

From your quote

The contract imposed a minimum membership period of between 1 and 3 years. If the contract was terminated early, the member had to immediately pay the gym all membership fees payable over the entirety of the minimum period. The court found that all two and three year minimum membership periods in the contract created a significant imbalance between the parties rights and obligations and were unfair. Minimum membership periods of 1 year were unfair where the member could not terminate the agreement in certain circumstances (such as illness, injury, loss of livelihood, change of principal place of work or home).

In all mobile companies I know of early termination is allowed in certain circumstances, and the fact that 30 day contracts are available in all networks means its a different case altogether.

The full case http://www.bailii.org/ew/cases/EWHC/Ch/2011/1237.html

d9oiu2wk07blr5

Pro Hoc Vice wrote: »

Yes and you do not get a heavily subsidised phone in a Gym Membership, in Ireland you can get very good 30day rolling contracts from as little as €20 a month all inclusive, you can get all inclusive pay as you go contracts from €30 a month no minimum length, you can get 12 month 18 month and 24 month contracts where the longer you sign up for the cheaper the handset and or cheaper monthly charge.

From your quote

The contract imposed a minimum membership period of between 1 and 3 years. If the contract was terminated early, the member had to immediately pay the gym all membership fees payable over the entirety of the minimum period. The court found that all two and three year minimum membership periods in the contract created a significant imbalance between the parties rights and obligations and were unfair. Minimum membership periods of 1 year were unfair where the member could not terminate the agreement in certain circumstances (such as illness, injury, loss of livelihood, change of principal place of work or home).

In all mobile companies I know of early termination is allowed in certain circumstances, and the fact that 30 day contracts are available in all networks means its a different case altogether.

Cancelling a contract with an operator incurs significant penalties and the penalties are weighted to benefit the mobile phone operator.

Pro Hoc Vice

Kamden Bitter Virtuoso wrote: »

Cancelling a contract with an operator incurs significant penalties and the penalties are weighted to benefit the mobile phone operator.

The mobile phone company have not cancelled the contract, the have stopped service for non payment of a bill, the service can be restored by paying the bill or entering into an agreement to repay the amount owed. I am not aware of any information on this thread that the phone company have terminated the contract and imposed any penalties for that termination, if the OP has such information he can provide it. The OP has not stated if the bill payer has tried to communicate with the company to sort the matter out or has just buried the head in the sand. I can only base my opinion on personal dealings with mobile phone companies, while they can be difficult I have not come across one that I think personally has imposed an unfair term on me.

If a person just wants to cancel a contract they must pay the contract in full, unless they have a good reason to cancel, one good reason is that the person has moved and no longer has service all companies allow cancellation in such case, I also believe companies allow cancellation in the event of moving out of jurisdiction, and in any event their is no penalty just the payment of the agreed contract. All companies also allow a contract to be reduced to minimum amount.

So if I enter into a 55 euro a month contract with company and after 6 months into 24 month contract i want to reduce spend I can to say 20 euro a month

Bepolite

No Pants wrote: »

While smartphones are expensive, I'd like to see some exploration of the unfairness of a 24 month+ contract for a device that may deteriorate significantly within that period. I'm thinking of battery life and the fact that it's not user-replaceable.

However, that's off-topic.

Sale of Goods Acts would apply for at least that period so I don't really see it as an issue. There are some interesting (IMO) points that turn on Apple etc. decisions to bury the battery in the phone essentially preventing the average end user from replacing something that they, no doubt, consider a consumable though.

paddypowder

Firstly "bepolite", equitable remedy has everything to do with any situation where a contract cannot/will not be honoured.

Here are some further facts in relation to this

The carrier is three ireland

The phone she took along with her contract was sony experia m valued around 229euro when purchased

Her contract required her to pay 49 euro towards phone
The contract is 18months
The contract is "classic flex-max 350" @ 40.66 per month


Here are some things that are not in question since you seem to be very eager to make implications Like a typical bunch of ignoramus ..

She is really a she and is not me... I don't like my carrier either but have good contract

She is not on a quest for a new phone

She is not looking to scam


I don't understand how on earth some of you are taking such a personal view on this, it is actually embarrassing.
I also don't understand how a person with any interest and understanding in contract law could not even attempt to construct any type of an argument against such a generic document as a phone contract.

If contracts were simply binding and unbreakable then there would be absolutely no need to study or teach contract law... It would simply be a line in a book stating that when you sign something.. After the cool off you are f'd if you breach


Just for record all I want is for there to be discussion based on law and irish legal precedent
And I appreciate how the last few posts have gone

Points to bepolite, pro hoc vice and WHATTOW

PLUG71

I stopped payimg my Voda bill last september due to issues I had with customer service.

Nealy a year later I get the 1st letter from them demanding payment in full, over €500.

I called the number of their collections dept and explained my issue to them.

With that they cut me off the call and did'nt call me back so I did'nt call them back myself.

Anyway I knew full well that the debt would be passed to a collections agency and yesterday I got a letter from Buchanon Clark and Wells threatening court action etc etc.

Contacted them via their website and agreed to pay them monthly.

So in a nut shell they will load your bill for several months after you stopped paying and chase you for every penny.

In my case they even lied about letters sent and apparent calls made regarding my non payment!

You cant win with them so its probably best to pay the bill, pay to get out of the contract or deal with the debt collection mob.

234

paddypowder wrote: »

Firstly "bepolite", equitable remedy has everything to do with any situation where a contract cannot/will not be honoured.

Equitable remedies are not what you think they are.

paddypowder

PLUG71 wrote: »

I stopped payimg my Voda bill last september due to issues I had with customer service.

Nealy a year later I get the 1st letter from them demanding payment in full, over €500.

I called the number of their collections dept and explained my issue to them.

With that they cut me off the call and did'nt call me back so I did'nt call them back myself.

Anyway I knew full well that the debt would be passed to a collections agency and yesterday I got a letter from Buchanon Clark and Wells threatening court action etc etc.

Contacted them via their website and agreed to pay them monthly.

So in a nut shell they will load your bill for several months after you stopped paying and chase you for every penny.

In my case they even lied about letters sent and apparent calls made regarding my non payment!

You cant win with them so its probably best to pay the bill, pay to get out of the contract or deal with the debt collection mob.

I would contact comreg immediately
see if they can do something for you

can I ask you if you know when they actually stopped your service?
as in, when were you no longer able to make calls send texts etc after you didn't pay the first bill

also did you inform them of your intention to breach? and if so when?

paddypowder

234 wrote: »

Equitable remedies are not what you think they are.

an equitable remedy is a direction from the court which is fair and just
in the case of a breach of contract..

in this case a woman is unable to pay for the monetary value of her contract, therefore both must seek an equitable remedy from the courts

PLUG71

paddypowder wrote: »

I would contact comreg immediately
see if they can do something for you

can I ask you if you know when they actually stopped your service?
as in, when were you no longer able to make calls send texts etc after you didn't pay the first bill

also did you inform them of your intention to breach? and if so when?

Service stopped in January and to be honest I was a little stubborn and refused to contact them.

Not once did they contact me in 11 months.

234

paddypowder wrote: »

an equitable remedy is a direction from the court which is fair and just
in the case of a breach of contract..

in this case a woman is unable to pay for the monetary value of her contract, therefore both must seek an equitable remedy from the courts

actually, equitable remedy has a specific legal meaning that goes beyond simply saying that something is just

paddypowder

PLUG71 wrote: »

Service stopped in January and to be honest I was a little stubborn and refused to contact them.

Not once did they contact me in 11 months.

I would definitely get in contact with comreg just because they have some very good people there that have good relationships with the operators here.

personally I would work out a payment plan but its always worth looking down all avenues especially when the services available are free.

youd never know, I have heard of people getting reductions on their bills.

PLUG71

paddypowder wrote: »

I would definitely get in contact with comreg just because they have some very good people there that have good relationships with the operators here.

personally I would work out a payment plan but its always worth looking down all avenues especially when the services available are free.

youd never know, I have heard of people getting reductions on their bills.

Thanks for the info

paddypowder

PLUG71 wrote: »

Thanks for the info

I will just add, you may need to make a complaint first, and get a complaint reference number from Vodafone and then contact comreg if they don't deal with your complaint to your satisfaction

paddypowder

234 wrote: »

actually, equitable remedy has a specific legal meaning that goes beyond simply saying that something is just

Im not being facetious but
are you asking me or are you telling me?

Bepolite

paddypowder wrote: »

Im not being facetious but
are you asking me or are you telling me?

In Civil Law there is the Common Law remedy which is damages and the Equitable remedies which are, inter alia, injunctions, orders for specific performance, rescission (if I'm not mistaken).

I suppose what you're looking for is a, perhaps, an equitable remedy after all as I suppose you are looking to rescind the contract. I don't see an order for Specific Performance being a goer as all you have to do is comply with the contract and so will they.

It is rather the legal equivalent of inventing the warp drive just to get from Dublin to Athlone though.

234

paddypowder wrote: »

Im not being facetious but
are you asking me or are you telling me?

I'm telling you. Unless you think that your friend's case merits an injunction/specific performance, equitable damages, or some kind of remedial trust, then you aren't looking for an equitable remedy.

You would be looking for more straightforward common law declaratory relief to the effect that a certain term does not form part of the contract between them.