nbohm at ernest.net
Thu Dec 4 19:24:09 GMT 2014
On 04/12/2014 18:09, Jon Ribbens wrote:
> On Thu, Dec 04, 2014 at 03:58:08PM +0000, Nicholas Bohm wrote:
>> As I understand it, legal tender is what a creditor cannot refuse to
>> accept without risking being met with the defence of tender. The courts
>> (in the examples given, anyway) are not creditors. They are like any
>> other person offering a service, who can lay down, on a
>> take-it-or-leave-it basis, what they want in exchange. That doesn't
>> undermine or alter the concept of legal tender, which never purported to
>> compel people to accept one form of payment rather than another unless
>> they were already creditors.
> Your description above is contradicted by the only official-ish web
> page that anyone can find that talks about Legal Tender, i.e. the
> Royal Mail site , which says that legal tender is what you pay
> into court, not what you offer the creditor.
> However, what is certainly true is that you cannot use the "defence of
> tender" unless you pay the full amount claimed into court . You
> cannot necessarily pay into court using "legal tender" (as already
> discussed). So this leaves "legal tender" as a completely meaningless
> It doesn't help that nobody can find any explanation of what the
> effect of the "defence of tender" actually is. The Royal Mint says
> that you "cannot successfully be sued for non-payment", but does this
> really mean you get the money you paid into court back again, and that
> the whole payment process is merely a rather over-elaborate proof that
> you had the money in the first place?
> This seems rather unlikely, it seems much more likely that the
> "unsuccesful" claimant will actually succeed in being awarded the
> amount of their claim, just they will have costs awarded against them.
> But as I say, nobody seems to know.
> Apologies for this being somewhat distant from Francis' original
> question ;-)
>  http://www.royalmint.com/aboutus/policies-and-guidelines/legal-tender-guidelines
>  CPR 37.2 http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part37
The Royal Mint site gives a very brief explanation, which I don't think
is authoritative and doesn't purport to be comprehensive.
The Civil Procedure Rules don't say (and wouldn't be competent to say)
that you cannot rely on the defence of tender unless you pay the money
into court: all they do is provide the machinery for payment into
court, without affecting the underlying law itself.
I would welcome Francis's view on what that really is (although it does
indeed take us some distance from his starting point). If the defence
is a bar to being sued provided you have offered the cash and been
rejected, then it serves some useful purpose. If it does no more than
save you from having to pay the costs of the claim form, and still
leaves the creditor with the money he can take from the court, then I
agree it's pretty pointless.
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