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Stuart J
Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 22620
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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The Lender is going to forgive debt of the Borrower. Both are

Resolved Question:

The Lender is going to forgive debt of the Borrower. Both are legal entities. Is that correct that it shall be made in the form of dead only?

May waive of debt be also made in the form of agreement (without witness) if at list symbolic consideration of 1 USD is envisaged.

In case form of dead is a must for debt relief, whether or not execution in the form of agreement makes it invalid or challengeable?
Submitted: 4 years ago.
Category: UK Law
Expert:  Stuart J replied 4 years ago.

I assume this is in UK. A mortgage is created by deed. It can only be varied by deed. If it isn’t varied by deed then the agreement to vary it/extinguish it takes effect as an agreement not a deed.

The differences between an agreement and an agreement by deed are thata deed must be witnessed, it must be delivered, or intended to be delivered, it must be signed and it must be witnessed. In a deed there needs to be no consideration. Limitation to enforce in a deed is 12 years but an agreement is 6.

Does that answer the question? Can I help further?

Customer: replied 4 years ago.

it is not in UK but English law applicable.
There is neither mortgage no any other security. It is unsecured loan.

Shall waiver of debt be only in the form of dead because it is made without consideration?

Expert:  Stuart J replied 4 years ago.
Just becuase there is no monetary consideration doesnt mean that there is no consideration.
Waving the debt is consideration.
The agreement to waive the debt is consideration.
Lawyers are adept at finding consideration where there is no money changes hands
Customer: replied 4 years ago.

So, consideration is not required in order to avoid formal possibility to challenge waiver of debt?

X owns 1 mln. to Y
Y wave debt of X without getting anything in return by normal agreement

Question: is it challengeable?

Will it be still challengeable if Y wave debt of X without getting anything in return but sign it in the form of dead (with a witness)?

Expert:  Stuart J replied 4 years ago.
If it is added it doesnt need consideration or witness.
If you let me have the background of who owes what to who and who has waived what and why and what has now hapened and who wants to overturn it I can expand
Customer: replied 4 years ago.
in more details:

Company X owes 1 mln. USD to Y (under unsecured loan agreement)
Y has no any other business with X
Y wave
1 mln. USD debt of X without getting anything in return (the form of deed was not adhered, only directors of both companies signed it)

Question: is it challengeable ?

Will it be still challengeable if Y wave debt of X without getting anything in return but sign it in the form of dead (with a witness)?
Expert:  Stuart J replied 4 years ago.
Who wants to challenge it? Why? On what basis?
If they waived it, why do they now want to go back on that?
Customer: replied 4 years ago.

This is general question.


in simple words, what are negative consequences except shorter limitation period if waive of debt is signed without witness?

Expert:  Stuart J replied 4 years ago.
The only difference is that it is effective as an agreement/contract not a deed.
It doesnt make it void.
Customer: replied 4 years ago.

then theoretical question.... who, why and on what ground can challenge waive of debt?

Expert:  Stuart J replied 4 years ago.
I still need to know who wants to challenge the waiver and why.
I assume that the lender agreed to waive for some reason they want to rescind the waiver? Why did they agree to waive in the 1st place?
Why do they want to rescind?
Without that info it is impossible to answer even hypothetically
Customer: replied 4 years ago.

there should be general ideas why? by whom? and on what ground? may waiver of debt in a form of agreement but not in form of deed may be questioned (declared void/unenforceable by the court)

Or simply “absence of witness” may never be a ground for declaring waiver of debt void or unenforceable?

Expert:  Stuart J replied 4 years ago.
Because there are lots of curcumstances to rescind waiver, fraud, duress, mistake, incorrect facts. Lots.
Lack of witness isnt one unless there is allegation that the main signature isnt the signature of whoever it is alleged to be.
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