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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10403
Experience:  Barrister 17 years experience
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1. I became a member of a Company that in 1996 acquired the

Customer Question

1. I became a member of a Company that in 1996 acquired the assets of a golf club. I subsequently resigned in 1965.
2. At the time of the acquisition the Company entered into a legal “Undertaking” with each joining Member setting out the terms and conditions for the repayment of the “Deposits” they had paid to join the OLD CLUB, which in my case is for the sum of £3,000. The “Undertaking” took the form of a legal contract in following form:-
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[In consideration of the Company admitting me to membership of the Company and the New Club and SUBJECT to the Company undertaking with me as set out below
THE UNDERTAKING TO BE GIVEN BY THE COMPANY
“The Company Agrees and undertakes with the Applicant that upon the Applicant ceasing to be a member of the New Club the Company will pay to the Applicant a sum equivalent to the Initial Deposit paid by the Applicant to xxxxxxxx [the Old Club] Limited in connection with his membership of the Old Club increased by the appropriate Retail Price Index factor as stated in the Rules of the Old Club from entrance fees, entrance deposits, and/or Debentures received from Incoming Members to the extent that such funds are sufficient Provided that the Directors consider that taking into account the prior repayment by the Company of all sums due in relation to Founder Debentures or Ordinary Debentures or Initial Deposits which have become repayable previously or which the Directors have agreed to repay, the finances of the Company permit such repayment”
I agree and undertake with the Company that I will not pursue or enforce any rights or claims I may have against xxxxx [the Old Club] Limited for repayment of the Initial Deposit paid by me in connection with my membership of the Old Club.
Signed Date ……………………………..
(The Applicant)
Note: The Company will issue the Applicant with an undertaking in the above form
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3. I am on the resignation list but am still awaiting repayment of my Deposit. Just last month I came to learn learn that in 2009 driven my market conditions the Company on its own volition and without my consent as a Deposit Holder ceased taking all of the types of joining fees specified in the “Undertaking”. They did not advise me at the time or give anything in return for the loss of the fee income nor was it replaced. This has caused an insufficiency of these hypothecated funds to fund resigned members Deposits as was contractually intended and as a consequence this has led to the Company taking the stance it now has no obligation to repay these and/or apply other sources of income to do so. The Undertaking plainly did not give the Company any authority to arbitrarily or unilaterally change any of its terms and conditions.
4. Is the action of the Company in stop taking joining fees without letting me know and without my agreement, thus rendering the repayment arrangements inoperative and then using that as a reason not to make repayments, a “breach of Contract”? If so is it a material or fundamental breach involving concealment and do I have the right to demand repayment right now and pursue the matter in the small claims court in case of need without the need to consider the other contract conditions. You may assume the Company’s finances are sufficient to meet my claim.
Thank you.
End
Submitted: 1 year ago.
Category: Law
Customer: replied 1 year ago.
My email is***@******.***
Because I have had previous questions but cannot remember my log in your system won't take my email address and I do not have another. What can be done
Expert:  Buachaill replied 1 year ago.
1. You can certainly sue the "new" Company for the unpaid deposit and any accrued increase in the CPI index. The only Get-out for the Company is if their finances don't permit repayment. However, if as you say, the new Company has the finances to repay, then the cannot refuse repayment of your Deposit. The nature of the obligation here is repayment of a debt. The undertaking gives rise to a debtor-creditor relationship and not merely one of contract. Whilst it is a fundamental breach of the repayment obligation, this is not normally how it would be expressed if you were making a claim in the Small claims Court. You simply seek repayment of the deposit plus the CPI increase. I would not plead any concealment. You simply seek the repayment of the debt.
Expert:  Buachaill replied 1 year ago.
2. The failure to continue taking fees by the new company is not a breach of contract you can rely upon as that is not part of your contractual undertaking with the new company. It is an activity which contract does not constrain. The new company can decide to do what it wants with this.3. Please RATE the Answer as unless the Answer your Expert does not receive any money from the monies you have paid the website so there is no incentive to answer any further questions.
Buachaill, Barrister
Category: Law
Satisfied Customers: 10403
Experience: Barrister 17 years experience
Buachaill and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Are you saying that the Company can just say we have no joining fees so we don't have to pay you ever?
In other words the conditions stand willy nilly as far as I am concerned!!
Is it not a contract as consideration is stated in it to have passed. They giving me the Undertaking and my agreeing not to pursue the Old Club for payment?
Customer: replied 1 year ago.
BTW I did rate you 5 X
Expert:  Buachaill replied 1 year ago.
4. The only condition to the Undertaking is if "the finances of the Company permit such repayment". There are no other conditions applicable. Here the new company's finances are sufficient to permit repayment so you should sue them for the money. However, consideration must flow from the promisor to the promisee. Here the new company and the old club are different entities so this is why it is in the nature of an undertaking to pay you, namely a unilateral obligation to pay you the money.
Expert:  Buachaill replied 1 year ago.
5. Thanks you kindly for the generous rating.

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