From: John Boyle 
Newsgroups: uk.finance
Subject: Re: Unauthorised Overdraft Charges
Date: Mon, 23 Apr 2007 01:03:42 +0100

In message <58sdbaF2ic98hU1@mid.individual.net>, tim..... 
 writes
>Then your point is wrong, in Law.
>
>They are enforcable if they ARE a charge for a service.
>
>They are NOT enforcable if the are a charge for
>correcting a breach.

Agreed.
>
>Which they are,

No they are not.
> is an issue of fact which depends upon
>the circumstances,

Agreed.
>it does not depend upon how they are
>described in the contract.

It most certainly does.

>
>Charges do not become enforcable because the customer
>(appears to) 'accept' the contract.

Agreed, to some extent.
>
>John, this is what is wrong with your postings all along.

No it isnt.
>You do not seem to understand this issue of law.

Yes I do.
>
>I accept that the charges may be a charge for a service,
>but you seem to think that they are so, just because the
>contract says this.

To some extent. I am correct in that if the contract makes a charge for 
a service that, err, well that it. It is the contract. the word 'breach' 
does not come into it. If a contract is 'breached' then a party to a 
contract can not impose a pre-determined fee, that can only be decided 
external to the contract.

What you dont seem to have grasped is that the whole point here is 
whether the charges are an unfair 'penalty' or not. One side says the 
extra charges imposed are for a breach of contract and because the level 
of charge imposed appears to be excessive are therefore are not 
enforceable. The other side says that they because the charges form part 
of a table of charges for services provided within the contract, then 
they are enforceable so long as they are not 'unfair'. It is generally 
accepted that 'unfair' contracts can not be enforced, but the decision 
of 'unfairness' is a matter of judgement, not a matter of fact.

If we then move to the so called 'penalty' charges. Are they 
*excessive*? It is a matter of judgement taking into account all the 
circumstances, not based on a superficial assessment as you seem to be 
making.

Some cumulative charges are obviously and blatantly unfair, but that 
does not make all the charges which are the subject of this thread 
unfair.

I take the view that each case rests on its merits and a 'holistic' view 
of all the circumstances specific to the case needs to be taken before a 
judgement can be made.
-- 
John Boyle