This document should be of most interest to anyone with a UK credit agreement beginning from before the 6th of April

2007. For those after this date, the information on pages 5 and 6 may be of a little interest. Before this date, the legislation required that for a credit agreement under the Consumer Credit Act 1974 to be enforceable, the bank must be able to produce an agreement signed by both parties, with ALL of the terms and conditions contained therein. Section 127 (3) (4) and (5) of that act specified that a court could not give an order for enforcement without such a document, detailed below: More research would likely be needed into case law, but I feel my interpretation is worth sharing.

http://www.legislation.gov.uk/ukpga/1974/39/contents
Consumer Credit Act 1974

60 Form and content of agreements. (1)The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of (a)the rights and duties conferred or imposed on him by the agreement, (b)the amount and rate of the total charge for credit (in the case of a consumer credit agreement), (c)the protection and remedies available to him under this Act, and (d)any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

61 Signing of agreement. (1)A regulated agreement is not properly executed unless (a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and (b)the document embodies all the terms of the agreement, other than implied terms, and (c)the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

And what have the courts had to say about this? See Bank of Scotland v Robert Mitchell 1st June 2009 The case did not reach judgement; the bank pulled out at the very last minute, annoying the judge: "There

may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument."
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So what was this argument? (formatted for easier reading)

"The key words in Section 61(1)(a) are the reference to a document itself containing all the prescribed terms, and conforming to the regulations under Section 61. This language is clear and specific, and ensures that mere reference to terms contained in another document will not suffice. The document must contain the prescribed terms, just as the signed document referred to in Section 127(3), which might save the day, must however contain the prescribed terms. The construction contended for by the defendant is entirely consistent with the language of Section 61(1), and is also supported by Professor Good in his encyclopaedic work - see Good & Consumer Credit Law and Practice volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the learned author draws a distinction between the language of paragraph(a) contain and paragraph (b) embody. It is respectfully submitted that the court should adopt the same reasoning in determining this issue in favour of the defendant, irrespective of whether or not it finds that the defendant was supplied with documents other than the credit agreement itself".
Bear in mind another point from the case:

"2. The action was commenced on 21st May 2008"

A point on which it was ruled:

" Having regard to the date of the agreement made in this case, which was prior to

amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3)."
Kinda worth knowing, huh?

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Sections 127 (3) (4) and (5) of the Pre-6th April 2007 version of the act read as follows: from: http://www.legislation.gov.uk/ukpga/1974/39/pdfs/ukpga_19740039_en.pdf

And in the current version of the act:

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The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 Commencement3.(1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007. (2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007. http://www.legislation.gov.uk/uksi/2007/123/article/3/made#article-3-2

http://www.legislation.gov.uk/uksi/2007/123/schedule/2/made

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Less interesting, for those with agreements from after April 6th 2007:

The Consumer Credit Act 1974 seems to state that: 1] You can ask an alleged creditor for a copy of the agreement and they have a duty to supply it. [ Section 61A (1) ]

3] They CAN, however, simply send you an unsigned version, if it's the same as the signed one. [ Section 61A (2) ]

4] If you then don't respond within 2 weeks by saying "I want to see the signed version", then you've forfeited your right to do so. [ Section 61A (3) (c) & Section 66A (2) (c) ]

5] HOWEVER, if the company sends you a copy of an unsigned document, they are required to TELL you in writing that it is identical to the signed (executed) one, and that you can see the executed agreement if you wish to. [ Section 61A (3) (c) & (4) ]

6] If they don't, it's not properly executed; it can't be enforced without a court order. [ Section 61A (5) and 65 (1) ]

F1

61A Duty to supply copy of executed consumer credit agreement

(1)Where a regulated consumer credit agreement, other than an excluded agreement, has been made, the creditor must give a copy of the executed agreement, and any other document referred to in it, to the debtor. (2)Subsection (1) does not apply if (a)a copy of the unexecuted agreement (and of any other document referred to in it) has already been given to the debtor, and (b)the unexecuted agreement is in identical terms to the executed agreement. (3)In a case referred to in subsection (2), the creditor must inform the debtor in writing (a)that the agreement has been executed, (b)that the executed agreement is in identical terms to the unexecuted agreement a copy of which has already been given to the debtor, and (c)that the debtor has the right to receive a copy of the executed agreement if the debtor makes a request for it at any time before the end of the period referred to in section 66A(2).

(4)Where a request is made under subsection (3)(c) the creditor must give a copy of the executed agreement to the debtor without delay.

(5)If the requirements of this section are not observed, the agreement is not properly executed.

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65 Consequences of improper execution.

(1)An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

F1

66AWithdrawal from consumer credit agreement

(2)To withdraw from an agreement under this section the debtor must give oral or written notice of the withdrawal to the creditor before the end of the period of 14 days beginning with the day after the relevant day. (c) in the case of an agreement to which section 61A (duty to supply copy of executed consumer credit agreement) applies, the day on which the debtor receives a copy of the agreement under that section or on which the debtor is informed as specified in subsection (3) of that section; (8)In the case referred to in subsection (7)(b) the creditor must without delay notify any third party of the fact that the debtor has withdrawn from the agreement. (9)Where the debtor withdraws from an agreement under this section (a)the debtor must repay to the creditor any credit provided and the interest accrued on it (at the rate provided for under the agreement), but (b)the debtor is not liable to pay to the creditor any compensation, fees or charges except any nonreturnable charges paid by the creditor to a public administrative body. (10)An amount payable under subsection (9) must be paid without undue delay and no later than the end of the period of 30 days beginning with the day after the day on which the notice of withdrawal was given (and if not paid by the end of that period may be recovered by the creditor as a debt).

127 Enforcement orders in cases of infringement. (1)In the case of an application for an enforcement order under [F1(za)section 55(2) (disclosure of information), or] [F2(zb)section 61B(3) (duty to supply copy of overdraft agreement), or] (a)section 65(1) (improperly executed agreements), or (b)section 105(7)(a) or (b) (improperly executed security instruments), or (c)section 111(2) (failure to serve copy of notice on surety), or (d)section 124(1) or (2) (taking of negotiable instrument in contravention of section 123), the court shall dismiss the application if, but F3. . . only if, it considers it just to do so having regard to (i)prejudice caused to any person by the contravention in question, and the degree of culpability for it; and (ii)the powers conferred on the court by subsection (2) and sections 135 and 136. (2)If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

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