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Banking Law > Lending > Flashcards

Lending Flashcards

1
Q

What is the core activity of lending in banking?

A

Lending involves providing funds by a bank to a borrower under agreed terms, defining the rights, obligations, and remedies of both parties.

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2
Q

What are the two primary types of lending in banking?

A

Overdrafts: Flexible, short-term credit extended via a current account.
Loans: Fixed sums provided for a defined term, typically with interest.

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3
Q

How do overdrafts differ from loans?

A

Overdrafts: Revolving credit for general purposes, repayable on demand, often without collateral.
Loans: Fixed sums for specific purposes, structured with repayment schedules, interest, and often secured by collateral.

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4
Q

What is the legal basis for overdrafts?

A

Banks are not obligated to honour overdrafts unless agreed contractually.

Case: Lloyds Bank plc v Voller (2000): Banks may charge higher interest rates for unauthorized overdrafts.

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5
Q

What does the case Rouse v Bradford Banking Co. (1894) establish about overdrafts?

A

Overdrafts are typically repayable on demand, giving banks the right to seek immediate repayment.

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6
Q

Can the right to demand repayment of overdrafts be waived?

A

Yes, exceptions arise if there is an express or implied agreement to waive this right, as seen in Williams & Glyn’s Bank v Barnes (1981).

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7
Q

What is the significance of interest on overdrafts?

A

Unauthorized overdrafts often attract higher interest rates.

Case: Sempra Metals Ltd v IRC (2008): Interest can be claimed even in the absence of an explicit agreement.

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8
Q

What is a loan’s repayment structure?

A

Loans are either:
Repayable on demand: No notice required for repayment (Bank of Baroda v Panessar (1987)).
Repayable on specific dates: Defined repayment schedule.

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9
Q

Is there a common law right to early loan repayment?

A

No, unless the loan agreement explicitly allows for early repayment.

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10
Q

What are variable and fixed interest rates in lending?

A

Variable Rates: Adjust according to market conditions.
Fixed Rates: Remain constant throughout the loan term.

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11
Q

What is default interest in lending agreements?

A

Higher interest applied for late payments to incentivize timely repayment.

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12
Q

What role does interest play in lending agreements?

A

Interest is critical, as confirmed in National Bank of Greece SA v Pinios Shipping Co. (1990), which reinforced its essential role in loan contracts.

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13
Q

What are personal and real securities for loans?

A

Personal Security: Guarantees by third parties.
Real Security: Mortgages or charges over assets.

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14
Q

What does the Rule in Clayton’s Case (1816) state?

A

Repayments are presumed to discharge debts in the chronological order they were incurred (“first in, first out”).

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15
Q

Can the Rule in Clayton’s Case be overridden?

A

Yes, by express contractual terms agreed upon by the parties.

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16
Q

What are the key cases concerning overdrafts?

A

Lloyds Bank plc v Voller (2000): Allowed higher charges for unauthorized overdrafts.
Office of Fair Trading v Abbey National plc (2009): Overdraft charges did not require fairness assessments under UTCCR 1999.

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17
Q

What legal principle governs repayment of loans on demand?

A

Case: Bank of Baroda v Panessar (1987): Loans repayable on demand do not require prior notice from the lender.

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18
Q

How do banks ensure the validity of security arrangements?

A

By complying with legal requirements for enforceable security and addressing challenges raised in case law.

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19
Q

What practical considerations should banks adopt in lending?

A

Clear terms for repayment and interest provisions.
Safeguards for managing unauthorized overdrafts.

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20
Q

What should borrowers understand before taking loans?

A

The implications of default interest, repayment terms, and security requirements.

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21
Q

What case confirmed banks’ freedom to set overdraft charges?

A

Office of Fair Trading v Abbey National plc (2009).

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22
Q

How does freedom of contract apply to lending agreements?

A

Parties can freely negotiate interest rates, repayment schedules, and collateral terms.

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23
Q

What are the two main types of loan security?

A

Personal Security: Guarantees.
Real Security: Mortgages and asset charges.

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24
Q

How do compounding interest and default interest differ?

A

Compounding Interest: Accrues on the principal and previous interest.
Default Interest: Higher rate applied to overdue amounts.

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25
Q

What does the case Sempra Metals Ltd v IRC (2008) demonstrate about interest?

A

Interest can be recoverable even without explicit agreement, emphasizing its critical role in lending.

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26
Q

What happens if a loan repayment is missed?

A

Default interest applies, and the bank may enforce security or demand immediate repayment.

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27
Q

What does Williams & Glyn’s Bank v Barnes (1981) clarify about overdraft repayment?

A

Overdraft repayment on demand may be waived through express or implied agreements.

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28
Q

What safeguards can banks implement for unauthorized overdrafts?

A

Imposing higher interest rates.
Monitoring overdraft limits closely.

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29
Q

Why are repayment schedules critical in loans?

A

They define the borrower’s obligations and allow the bank to plan asset management.

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30
Q

What are the borrower’s risks with variable interest rates?

A

Rate increases can make repayments unaffordable, leading to defaults.

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31
Q

Why do banks favour fixed interest rates?

A

Provide predictable income streams and reduce exposure to market volatility.

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32
Q

What does National Bank of Greece SA v Pinios Shipping Co. (1990) highlight about interest?

A

Reinforces interest as integral to lending, governing the lender’s compensation.

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33
Q

What are the legal risks of improper security arrangements?

A

Invalid security may render loans unsecured, exposing the bank to significant losses.

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34
Q

What practical advice is provided in Cranston’s Chapter 14 on lending?

A

Detailed guidance on structuring loans.
Importance of compliance with legal frameworks.

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35
Q

What are unauthorized overdraft charges often referred to as?

A

Punitive interest rates or penalty fees to deter misuse.

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36
Q

How do compounding interest rates benefit lenders?

A

They maximize returns by accruing interest on both principal and previously earned interest.

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37
Q

What are the implications of security for borrowers?

A

May lose assets pledged as collateral if they default.
Encourages responsible borrowing and repayment.

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38
Q

How does the Rule in Clayton’s Case affect revolving credit facilities?

A

Repayments are applied to older debts first unless the contract specifies otherwise.

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39
Q

What is the importance of clarity in lending agreements?

A

Reduces disputes, ensures enforceability, and protects both parties’ interests.

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40
Q

What is a key takeaway about lending in banking law?

A

Lending agreements balance contractual freedom with regulatory compliance, ensuring fairness and risk mitigation.

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41
Q

What legal rights do banks have in overdraft agreements?

A

Banks are not obligated to provide overdrafts unless contractually agreed.
They can demand immediate repayment unless waived through express or implied terms.

Case Reference: Rouse v Bradford Banking Co. (1894).

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42
Q

How do unauthorized overdrafts impact borrowers?

A

Unauthorized overdrafts often incur higher interest rates and additional fees.
These penalties incentivize borrowers to stay within agreed limits.

Case Reference: Lloyds Bank plc v Voller (2000).

43
Q

What remedies are available to banks when borrowers default on loans?

A

Enforcing security: Selling assets under a mortgage or charge.
Legal action: Suing the borrower for repayment.
Adjusting terms: Renegotiating repayment schedules or interest rates.

44
Q

What is the importance of loan agreements in managing risk?

A

Clearly define terms of repayment, interest rates, and collateral.
Mitigate misunderstandings and disputes.
Provide legal recourse for enforcement in case of default.

45
Q

What is the impact of compounding interest on loans?

A

Increases the total repayment amount by accruing interest on both principal and previously accrued interest.
Can significantly benefit the lender over long loan terms.

46
Q

What safeguards do borrowers have against sudden demand for repayment in overdrafts?

A

Negotiating terms that limit the bank’s ability to demand immediate repayment.
Courts may consider implied agreements to assess whether the bank waived its right to demand repayment (Williams & Glyn’s Bank v Barnes (1981)).

47
Q

What are the risks associated with revolving credit facilities?

A

High potential for accumulating debt if repayments are not structured.
Subject to the Rule in Clayton’s Case, which prioritizes older debts.

48
Q

What does the Rule in Clayton’s Case ensure in overdraft repayments?

A

Ensures that payments made to an account are applied to the oldest debts first unless otherwise agreed.
Provides clarity in managing revolving credit.

49
Q

What are the legal implications of early repayment of loans?

A

No common law right for borrowers to repay loans early unless explicitly permitted by the loan agreement.
Banks may impose penalties for early repayment to compensate for lost interest income.

50
Q

What is the importance of unique identifiers in electronic transfers?

A

Payments are processed based on account numbers and sort codes, not beneficiary names.

Case Reference: Tidal Energy Ltd v Bank of Scotland plc (2014).

51
Q

How do fixed and variable interest rates differ in their impact on borrowers?

A

Fixed Rates: Offer predictability but may lock borrowers into higher rates during market declines.
Variable Rates: Adapt to market changes but carry risk during economic volatility.

52
Q

How do personal guarantees function as loan security?

A

Third parties provide guarantees to cover loan repayments if the primary borrower defaults.
Increases lender confidence but exposes guarantors to financial liability.

53
Q

What are the challenges of enforcing real security in lending?

A

Delays due to legal processes and valuation disputes.
Borrower resistance to asset seizure.
Potential reputational damage to the lender.

54
Q

How does the National Credit Act influence loan agreements?

A

Imposes obligations on lenders to ensure responsible lending practices.
Protects borrowers from exploitative terms or hidden charges.

55
Q

What is the significance of National Bank of Greece SA v Pinios Shipping Co. (1990) in lending law?

A

Reinforced the essential role of interest in loan agreements.
Highlighted that interest terms must be explicitly agreed upon to avoid disputes.

56
Q

What practical considerations should borrowers evaluate before taking loans?

A

Understanding repayment schedules and flexibility.
Assessing the implications of variable vs fixed interest rates.
Negotiating favourable terms for early repayment or waivers for default interest.

57
Q

What obligations do banks have under the Consumer Credit Act?

A

Ensure transparency in lending terms.
Avoid misleading borrowers regarding costs and repayment obligations.
Provide fair dispute resolution mechanisms.

58
Q

Why are interest rates a critical component of lending agreements?

A

They determine the cost of borrowing and affect the lender’s return.
Default interest clauses incentivize timely repayments.

59
Q

How do revolving credit facilities differ from traditional loans?

A

Offer continuous credit up to a limit, repayable on demand.
Suitable for short-term, fluctuating needs rather than fixed-term commitments.

60
Q

What risks do banks face in lending?

A

Borrower defaults due to financial instability.
Collateral value depreciation affecting secured loans.
Legal challenges in enforcing repayment terms.

61
Q

What does Bank of Baroda v Panessar (1987) highlight about loan repayment on demand?

A

Banks are not required to provide notice for loans repayable on demand.

62
Q

How does compounding interest affect loan affordability?

A

Significantly increases the total repayment amount, especially for long-term loans.
Borrowers should carefully evaluate terms before agreeing to compounding interest clauses.

63
Q

How does the Office of Fair Trading v Abbey National plc (2009) case impact overdraft charges?

A

Upheld banks’ ability to set their own charges without fairness assessments under UTCCR 1999.

64
Q

What measures can banks implement to manage overdraft risks?

A

Setting clear limits and monitoring customer accounts.
Charging higher interest rates for unauthorized overdrafts.
Regularly updating customers about their account status.

65
Q

How can borrowers negotiate more favourable loan terms?

A

Request flexible repayment schedules and lower default interest rates.
Secure loans with high-value collateral to lower interest rates.
Seek waivers for early repayment penalties.

66
Q

How does the Rule in Clayton’s Case apply to account closures?

A

Ensures that older debts are settled first from account balances before closure.

67
Q

What is the role of voluntary codes in overdraft management?

A

Encourage fair treatment of customers.
Promote transparent communication about charges and repayment obligations.

68
Q

How does Cranston critique the current lending framework?

A

Argues that rapid advancements in financial technology outpace existing regulations.
Emphasizes the need for updated legal standards to address modern lending challenges.

69
Q

What protections do borrowers have against unfair lending practices?

A

Statutory protections under the Consumer Credit Act.
Judicial oversight to ensure fairness in enforcement.
Voluntary codes of conduct adopted by banks.

70
Q

Why is understanding security arrangements essential for borrowers?

A

Prevents unintentional loss of assets in default situations.
Helps borrowers negotiate terms that balance risk and affordability.

71
Q

What are the core learning outcomes for the chapter on lending?

A

Understand mechanisms such as overdrafts, fixed-term loans, and syndicated loans.
Analyse legal principles of lender liability and loan security.
Explore statutory protections like the Consumer Credit Act 1974.
Examine modern lending alternatives like payday loans and peer-to-peer lending.
Critically engage with legal frameworks that prevent unfair lending practices.

72
Q

What does the Capital Requirements Regulation 2013 (CRR) govern?

A

Defines ‘credit institutions’ as entities taking deposits and granting credit.
Ensures adequate capital reserves to cover lending risks and prevent insolvency.
Article 4 outlines the definition and capital adequacy requirements.

73
Q

What protections does the Consumer Credit Act 1974 offer borrowers?

A

Section 60: Regulates form and content of loan agreements.
Section 66A: Provides a right to withdraw from certain credit agreements.
Part V: Outlines documentation requirements for regulated agreements.

74
Q

What does the FCA’s Consumer Credit Sourcebook (CONC) regulate?

A

Ensures fair treatment of borrowers.

75
Q

What does credit ensure?

A

Ensures adequate capital reserves to cover lending risks and prevent insolvency.

76
Q

What does Article 4 outline?

A

Outlines the definition and capital adequacy requirements.

77
Q

What does the FCA’s Consumer Credit Sourcebook (CONC) regulate?

A

Ensures fair treatment of borrowers.
CONC 6: Obligates lenders to assess creditworthiness.
CONC 5.2A: Protects vulnerable customers, ensuring informed decisions.

78
Q

What key principle emerged from Lloyds Bank Plc v Voller (2008)?

A

Banks may imply an overdraft agreement by honouring payment instructions exceeding the balance, creating a debtor-creditor relationship.

79
Q

What was the ruling in Director General of Fair Trading v First National Bank Plc (2001)?

A

Terms allowing interest post-judgment are not inherently unfair if clearly communicated.
The decision emphasised balance and transparency in loan agreements.

80
Q

What principle arose from Verity & Spindler v Lloyds Bank Plc (1993)?

A

Banks providing financial advice assume a duty of care.
Liability arises for negligent advice that leads to financial loss.

81
Q

How did Office of Fair Trading v Abbey National Plc (2009) limit consumer protection?

A

Overdraft charges were deemed part of banks’ pricing structures, exempt from fairness review under UTCCR 1999 Regulation 6(2).

82
Q

What is the legal nature of overdrafts?

A

Overdrafts create a debtor-creditor relationship.
Banks can demand repayment anytime, unless expressly or implicitly waived.

83
Q

What is the significance of Rouse v Bradford Banking Co. (1894) regarding overdrafts?

A

Reinforced the bank’s right to immediate repayment of overdrafts.

84
Q

How does the Rule in Clayton’s Case (1816) affect revolving credit?

A

Repayments are applied to debts in the chronological order incurred unless agreed otherwise.

85
Q

What are fixed-term loans?

A

Agreements for specified loan amounts over fixed periods.
Governed by the Consumer Credit Act 1974, requiring transparent terms.

86
Q

What are syndicated loans?

A

Large loans provided by multiple banks for significant projects.
Governed by complex agreements to allocate risk among lenders.

87
Q

What is the impact of Pacific Colocotronis on syndicated loans?

A

Explored fiduciary duties between arranging banks and participating lenders, although often disclaimed in agreements.

88
Q

How does compounding interest differ from simple interest?

A

Compounding interest accrues on both principal and previous interest, increasing the total cost of borrowing.

89
Q

What protections do vulnerable borrowers have under the FCA’s CONC?

A

CONC 5.2A requires tailored advice for borrowers with limited financial understanding or those in financial distress.

90
Q

What regulatory gaps exist in modern FinTech lending?

A
  • Peer-to-peer platforms often lack traditional protections like transparent interest rates or dispute resolution mechanisms.
91
Q

What are the risks of payday loans for borrowers?

A

High interest rates and fees can trap borrowers in cycles of debt.
Limited regulation increases vulnerability to exploitative terms.

92
Q

How does Titford Property Co. Ltd v Cannon Street Acceptances Ltd (1975) relate to overdrafts?

A

Reinforced that banks must clearly communicate any waiver of repayment rights.

93
Q

What are the challenges of enforcing real security in loan agreements?

A
  • Delays in legal proceedings.
  • Market fluctuations affecting asset values.
  • Borrower resistance to repossession.
94
Q

What key role does Article 4 of the CRR play in lending regulation?

A

Defines capital adequacy requirements to protect depositors and borrowers from institutional insolvency.

95
Q

What protections does Section 66A of the Consumer Credit Act 1974 provide?

A

Borrowers have the right to withdraw from certain credit agreements within a specified period.

96
Q

How did National Bank of Greece SA v Pinios Shipping Co. (1990) shape interest provisions in loans?

A

Reinforced that interest terms must be explicit to prevent disputes and ensure enforcement.

97
Q

What responsibilities do banks have when issuing syndicated loans?

A
  1. Ensuring accurate disclosure of risks.
  2. Managing fiduciary duties among participating lenders.
98
Q

What is the judicial approach to lender liability in advisory contexts?

A

Banks assume liability for negligent advice if they act as financial advisors, as seen in Verity & Spindler v Lloyds Bank Plc (1993).

99
Q

How do borrowers benefit from fixed-term loans?

A
  • Predictable repayment schedules.
  • Clearly defined terms, reducing risk of unexpected costs.
100
Q

What role do voluntary codes play in modern lending?

A
  • Promote transparency in charges and terms.
  • Encourage fair treatment of vulnerable borrowers.
101
Q

How do modern lending innovations challenge traditional frameworks?

A
  • Peer-to-peer lending lacks regulatory oversight.
  • Digital lenders may bypass statutory protections like those under the Consumer Credit Act.
102
Q

What did Williams & Glyn’s Bank v Barnes (1981) highlight about repayment rights?

A

Banks’ rights to immediate repayment of overdrafts can be waived through implied agreements.

103
Q

How should regulators address evolving challenges in lending?

A

Introduce stricter oversight of FinTech platforms.
Expand borrower protections to cover digital and peer-to-peer lending.

Banking Law (10 decks)

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