Protected goods
Where the debtor under a hire purchase or conditional sale agreement has paid one third
or more of the total price but the ownership is still with the creditor who
terminates the agreement for the debtor’s default, the goods cannot be repossessed,
unless the debtor consents, without a court order (s 90 of the CCA 1974). A creditor
In such a case, the debtor will
have had free use and possession of goods for a period. Furthermore, any guarantor
of the credit agreement would be released from liability and could recover any
security given. A guarantor is someone who guarantees that the creditor will receive
payment due to him or her from the hirer/debtor. It is a secondary responsibility
based solely on the responsibility of the hirer to pay.
agreement. He fell behind with the repayments and an agent of the finance
company repossessed the car without obtaining Bray’s consent or a court order. Unfortunately, Bray continued to default on the repayments and the
company sued for repossession. It was held, on granting a repossession order, that
Bray was entitled to recover all the money he had previously paid to the finance
Company
In Bentinck Ltd v Cromwell Engineering (1971), a car was the subject of a hire
purchase agreement. The car was involved in an accident. The hirer took the car
to a garage for repair; he then failed to pay any more hire purchase instalments
and did not collect the car. The finance company traced the car and repossessed
it. They sold the car and sought to recover depreciation costs from the hirer. He
claimed that they had repossessed the car without consent. It was held that,
when a hirer has abandoned goods and shows that he or she no longer has any
interest in them, the owner can repossess even ‘protected goods’ without a
court order.
Action to recover possession of protected goods
The CCA 1974 gives the county court jurisdiction over actions relating to protected
goods. All those concerned, including any guarantor or indemnifier, must be made
parties to the court action. The court can make the following orders in relation to the
goods (s 133 of the CCA 1974).
Return order
The hirer is asked to return the goods to the owner/creditor. If the hirer fails to
return the goods, the only fallback position is to send in the bailiffs.
Suspended return order
This is awarded when the hirer has a reasonable excuse for default,
for example,
redundancy or ill health. The court can vary the terms of the original agreement in
order to enable the hirer to meet his or her obligations. It can reduce the amount of
each instalment and extend the period of time to pay, if this is deemed to be
necessary. These are known as time orders. The effect of a suspended order can
therefore be summarised as follows
• the agreement continues but with a variation in terms;
• the owner cannot claim extra interest for the longer period of time;
• if the hirer breaks any terms specified in the varied agreement, it is possible for
the court to make an order that the creditor can repossess without going back to
court, that is, implement the suspended order;
• the court can vary the time order upon application from the hirer or the owner,
if the hirer’s financial circumstances get better or worse;
• the hirer may avoid the suspended order by paying off the unpaid balance and
becoming the owner of the goods
• the court can vary the time order upon application from the hirer or the owner,
if the hirer’s financial circumstances get better or worse;
• the hirer may avoid the suspended order by paying off the unpaid balance and
becoming the owner of the goods
Transfer order
This order gives part of the goods back to the owner and allows the hirer to retain
part of the goods and become owner of them. The hire purchase agreement is then
at an end.