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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10587
Experience:  Barrister 17 years experience
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I think I understand what you are saying. But just to be

Customer Question

I think I understand what you are saying. But just to be clear is it that because it is a Creditor/Relationship that the Company cannot apply any of the conditions in their undertaking and they have no effect? I wonder what their purpose was in putting
them in in the first place. Thank you
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. An undertaking is a unilateral obligation that is, one not supported by fresh consideration. In law, you haven't provided any fresh value for this undertaking, so strictly speaking, it is not a contract. The undertaking is conditioned and these conditions are applicable. In my answer, I said that issues surrounding the running of the golf club are not conditions of the undertaking given to you. But the conditions attached to the undertaking are applicable as this is a contingent undertaking. However, in law, an undertaking gives rise to a debt. Issues surrounding "fundamental breach" have no applicability to an undertaking as there is only one obligation, the payment obligation. The rules relating to fundamental breach are applicable to contracts, not undertakings. But the conditions attached to this undertaking are applicable.
Buachaill and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.
18/11/2015 05:28
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?
Expert:  Buachaill replied 1 year ago.
2. I appreciate what you are saying but the rule is that consideration must flow from the promisor to the promisee. The Old Club is not the same party as the new club albeit they are the successors to it. However, the only condition on which the new company can deny you payment is if they don't have the financial resources. But once they have the financial resources, then you have to be paid. So, there is really only one condition to the undertaking. Not accepting joining fees is not grounds to refuse you payment on the undertaking. There are no other conditions applicable willy-nilly. So force the new company to pay up and sue them for the deposit plus interest.
Customer: replied 1 year ago.
Thank you for your very helpful views, which now I better understand the differences between an undertaking and a contract, make complete sense to me.There is just one final thing. You will see that the undertaking sits within a contract of application for membership which it will not be clear to you from the details I sent you involved my subscribing for a £1,500 Debenture, so further consideration did pass from me to the Company albeit not as an add on to my Deposit.Does this change anything?.
Expert:  Buachaill replied 1 year ago.
3. The important point is that whilst you have a contractual membership relationship with the club arising from membership, this is a free-standing undertaking in the nature of a unilateral obligation to pay the monies. YOu are on weaker grounds the more you include issues of contract as then the club can alter the terms of membership to exclude you from being paid your money.
Customer: replied 1 year ago.
Ah, it is a free standing undertaking.
I am now going to get a Solicitor to set the ball rolling and bring a claim in the Small Claims Court.
That could take up to 5 months in this area but just for your information I will let you know the outcome in due course.
Having said that I understand and accept that what you have said here is not a formal opinion but more your viewpoint.
Thank you again.
Expert:  Buachaill replied 1 year ago.
4. Best of luck with the action. You are welcome to the advice.