Moneylenders (No. 2) Act , 1933

1 Definitions.

1.—In this Act—

the word “moneylender” has the meaning assigned to it by the Moneylenders Act, 1900, as amended by this Act;

the expressions “authorised name” and “authorised address” mean respectively the name under which and the address at which a moneylender is authorised by a certificate granted under this Act to carry on business as a moneylender;

the expression “business name” means the name or style under which any business is carried on, whether in partnership or otherwise;

the word “company” means any body corporate being a moneylender;

the word “firm” means an unincorporate body of two or more individuals, or one or more individuals and one or more corporations, or two or more corporations, who have entered into partnership with one another with a view to carrying on business for profit;

the word “interest” does not include any sum lawfully charged in accordance with the provisions of this Act by a moneylender for or on account of expenses, but save as aforesaid, includes any amount, by whatsoever name called, in excess of principal, paid or payable to a moneylender in consideration of or otherwise in respect of a loan;

the word “principal” means in relation to a loan the amount actually lent to the borrower;

the expression “the Bankruptcy Acts” means the Irish Bankrupt and Insolvent Act, 1857, and the Bankruptcy (Ireland) Amendment Act, 1872.

2 National of Saorstát Eireann.

2.—Each of the following persons shall for the purposes of this Act be a national of Saorstát Eireann, that is to say:—

(a) a person born in Saorstát Eireann or in the area now comprised in Saorstát Eireann;

(b) a person born outside Saorstát Eireann or the area now comprised in Saorstát Eireann whose mother at the time of his birth was ordinarily resident in Saorstát Eireann or such area;

(c) a person who at the relevant time is and for not less than five consecutive years immediately preceding that time has been ordinarily resident in Saorstát Eireann.

3 Irish-owned bodies corporate.

3.—(1) In this Act the expression “Irish-owned body corporate” means a body corporate, constituted within Saorstát Eireann, the issued shares of which are at the relevant time to an extent exceeding one-half (in nominal value) thereof in the beneficial ownership of a person who is or of two or more persons each of whom is at that time either a national of Saorstát Eireann or a body corporate, constituted within Saorstát Eireann, the issued shares of which are at that time to an extent exceeding one-half (in nominal value) thereof in the beneficial ownership of nationals of Saorstát Eireann.

(2) For the purposes of the immediately preceding sub-section, but not further or otherwise, the following provisions shall have effect, that is to say:—

(a) where a national of Saorstát Eireann dies and is at the time of his death the beneficial owner of any shares in a body corporate, such shares shall, until the grant of probate of his will or letters of administration of his personal estate, be deemed to continue in the beneficial ownership of a national of Saorstát Eireann, and upon the grant of such probate or letters of administration the personal representative for the time being of such national shall, so long as he is entitled to such shares in his representative capacity, be deemed to be the beneficial owner of such shares and, if he is not a national of Saorstát Eireann, to be a national of Saorstát Eireann; and

(b) where a national of Saorstát Eireann becomes a bankrupt or carries an arrangement with his creditors and such national was at the time of his bankruptcy or arrangement the beneficial owner of any shares in a body corporate, and his interest in such shares becomes vested in his assignee in bankruptcy or a trustee of the estate of such national as an arranging debtor, such shares shall be deemed, so long as such interest remains so vested, to be in the beneficial ownership of such assignee or trustee, and such assignee or trustee shall, so long as such interest remains so vested, be deemed, if he is not a national of Saorstát Eireann, to be a national of Saorstát Eireann; and

(c) where a person is for the time being entitled to the income arising from any shares in a body corporate held by a trustee, such person shall, so long as he continues to be entitled to such income, be deemed to be the beneficial owner of such shares; and

(d) where two or more persons are each for the time being entitled to a proportionate part of the income arising from shares in a particular body corporate or from such shares and other property held by a trustee, each of such persons, so long as he continues to be entitled to a proportion of such income, shall be deemed to be the beneficial owner of a corresponding proportion of such shares; and

(e) where the issued shares of a body corporate are transferred to a bank, being a body corporate, by way of security for an advance and such bank is registered as the owner of such shares in the register of shareholders of such first-mentioned body corporate, such transfer and registration shall be deemed not to operate to transfer the ownership of such shares to such bank.

4 Moneylending contracts where interest not expressed in terms of a rate.

4.—Where by a contract for the loan of money by a moneylender the interest charged on the loan is not expressed in terms of a rate, any amount paid or payable to the moneylender under the contract shall be appropriated to principal and interest in the proportion that the principal bears to the total amount of the interest, and the rate per cent, per annum represented by the interest charged as calculated in accordance with the provisions of the First Schedule to this Act shall be deemed to be the rate of interest charged on the loan.

5 Licences to be taken out by moneylenders.

5.—(1) Every moneylender, whether carrying on business alone or as a partner in a firm, shall take out annually in respect of every address at which he carries on his business as such a licence (in this Act referred to as a moneylender's licence), which shall expire on the thirty-first day of July in every year.

(2) Subject to the provisions of this Act, the Revenue Commissioners shall, upon an application being made, in accordance with regulations made by them, for a moneylenders licence and upon payment to them by the applicant of the excise duty for the time being required by law to be paid by persons taking out a moneylender's licence, grant to the applicant a moneylenders licence.

(3) Every moneylenders licence taken out by a person shall be taken out by such person in his true name, and if any moneylenders licence is taken out by any person in any name other than his true name such licence shall be void.

For the purposes of this sub-section the true name of a limited liability company shall be the name under which such company is incorporated.

(4) Every moneylenders licence shall be in such form as the Revenue Commissioners may direct and shall state the authorised name and authorised address of the person by whom it is taken out.

(5) If any person—

(a) takes out a moneylender's licence in any name other than his true name; or

(b) carries on business as a moneylender, without having in force a proper moneylender's licence authorising him so to do, or, being licensed as a moneylender, carries on business as such in any name other than his authorised name, or at any other place than his authorised address or addresses; or

(c) enters into any agreement in the course of his business as a moneylender with respect to the advance or repayment of money, or takes any security for money in the course of his business as a moneylender, otherwise than in his authorised name;

such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the following penalties, that is to say:—

(a) if such person is an individual—

(i) in the case of a first offence, an excise penalty of one hundred pounds, and

(ii) in the case of a second or any subsequent offence, an excise penalty of one hundred pounds or imprisonment for any term not exceeding three months or both such excise penalty and imprisonment;

(b) if such person is a company—

(i) in the case of a first offence, an excise penalty of one hundred pounds, and

(ii) in the case of a second or any subsequent offence, an excise penalty of five hundred pounds.

6 Certificate required for grant of moneylender's licence.

6.—(1) Subject to the provisions of this section a moneylender's licence shall not be granted except to a person who holds a certificate granted in accordance with the provisions of this section authorising the grant of the licence to that person, and a separate certificate shall be required in respect of every separate licence. Any moneylender's licence granted in contravention of this section shall be void.

(2) Certificates under this section (in this Act referred to as “certificates”) shall be granted by the Justice of the District Court having jurisdiction in the District Court area in which the moneylender's business is to be carried on.

(3) A certificate under this section shall not be granted to any applicant unless such applicant produces satisfactory evidence that such applicant, if an individual, is at the date of the application a national of Saorstát Eireann or, if a company, is at the said date an Irish-owned body corporate.

(4) Every certificate granted to a moneylender shall show his true name and the name under which, and the address at which, he is authorised by the certificate to carry on business as such, and a certificate shall not authorise a moneylender to carry on business at more than one address, or under more than one name, or under any name which includes the word “bank” or otherwise implies that he carries on banking business, and no certificate shall authorise a moneylender to carry on business under any name except—

(a) his true name; or

(b) the name of a firm in which he is a partner, not being a firm required by the Registration of Business Names Act, 1916, to be registered; or

(c) a business name, whether of an individual or of a firm in which he is a partner, under which he or the firm has, at the passing of this Act, been registered for not less than three years both as a moneylender under the Moneylenders Act, 1900, and under the Registration of Business Names Act, 1916.

(5) A certificate shall come into force on the date specified therein, and shall expire on the next following thirty-first day of July.

(6) The Minister for Justice shall make rules with respect to the procedure to be followed in making applications for certificates (including the notices to be given of intention to make such an application), and certificates shall be in such form as may be prescribed by the rules so made.

(7) Every rule made by the Minister for Justice under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after the rule is laid before it annulling such rule, such rule shall be annulled accordingly, but without prejudice to the validity of anything previously done under such rule.

(8) A certificate shall not be refused except on some one or more of the following grounds:—

(a) that the grant of the certificate to the applicant is prohibited by sub-section (3) of this section;

(b) that satisfactory evidence has not been produced of the good character of the applicant, and in the case of a company of the persons responsible for the management thereof;

(c) that satisfactory evidence has been produced that the applicant, or any person responsible or proposed to be responsible for the management of his business as a moneylender, is not a fit and proper person to hold a certificate;

(d) that the applicant or any person responsible or proposed to be responsible for the management of his business as a moneylender is by order of a court disqualified for holding a certificate;

(e) that the applicant has not complied with the provisions of any rules made under this section with respect to applications for certificates;

(f) that the applicant has failed to satisfy the court that he is a person of financial stability;

(g) that the applicant is the holder of a bookmaker's licence;

(h) that the applicant is the holder of a licence for the sale of intoxicating liquor.

(9) A superintendent of the Gárda Síochána of, or any resident in, the District Court area in which an application for a certificate is made shall have the right to appear in court and oppose the granting of a certificate on any one or more of the grounds mentioned in the last preceding sub-section, and to be heard and to call witnesses in support of his objection.

(10) Any person aggrieved by the refusal of a Justice of the District Court to grant a certificate may appeal to the Judge of the Circuit Court within whose Circuit the moneylender's business is to be carried on, and the decision of such Judge shall be final and not appealable.

(11) Whenever an application for a certificate is refused and an appeal from such refusal is lodged, then if the applicant was at the time of making the application the holder of a moneylender's licence, the Revenue Commissioners may, without payment of any duty but subject to such conditions as they may think fit to impose, issue to such applicant a temporary licence for such period not extending beyond the expiration of seven days after the decision of such appeal as they may think fit, and every such temporary licence shall while it remains in force be a moneylender's licence within the meaning of this Act.

7 Suspension and forfeiture of moneylenders' certificates.

7.—(1) Where any person being the holder of a certificate, is convicted of any offence under this Act or under section 2 or 4 of the Betting and Loans (Infants) Act, 1892, or section 4 of the Moneylenders Act, 1900, the court—

(a) may order that any certificate held by that person, and in the case of a partner in a firm by any other partner in the firm, shall either be suspended for such time as the court thinks fit, or shall be forfeited, and may also, if the court thinks fit, declare any such person, or any person responsible for the management of the money-lending business carried on by the person convicted, to be disqualified for holding a certificate for such time as the court thinks fit; and

(b) shall cause particulars of the conviction and of any order made by the court under this sub-section to be endorsed on every certificate held by the person convicted or by any other person affected by the order, and shall cause copies of those particulars to be sent to the authority by whom any certificate so endorsed was granted and to the Revenue Commissioners.

(2) Where by order of a court a certificate held by any person is suspended or forfeited, or any person is disqualified for holding a certificate, he may, whether or not he is the person convicted, appeal against the order in the same manner as any person convicted may appeal against his conviction, and the court may, if it thinks fit, pending the appeal, defer the operation of the order.

(3) Any certificate required by a court for endorsement in accordance with the foregoing provisions of this section shall be produced, in such manner and within such time as may be directed by the court, by the person by whom it is held, and any person who without reasonable cause, makes default in so producing any certificate so required shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds for each day during which the default continues.

(4) Where a certificate held by any person is ordered to be suspended or to be forfeited under the foregoing provisions of this section, any moneylenders licences granted to that person, whether in pursuance of that or any other certificate, shall be suspended during the period for which the certificate is ordered to be suspended or become void, as the case may be.

8 Prohibition of issue of documents implying a moneylender is a banker.

8.—If a moneylender, for the purposes of his business as such, issues or publishes, or causes to be issued or published, any advertisement, circular or document of any kind whatsoever containing expressions which might reasonably be held to imply that he carried on banking business he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the following penalties, that is to say:—

(a) if such person is an individual—

(i) in the case of a first offence, a fine not exceeding one hundred pounds, and

(ii) in the case of a second or any subsequent offence, a fine not exceeding one hundred pounds or imprisonment for any term not exceeding three months or both such fine and imprisonment;

(b) if such person is a company—

(i) in the case of a first offence, a fine not exceeding one hundred pounds, and

(ii) in the case of a second or any subsequent offence, a fine not exceeding five hundred pounds.

9 Names to be stated on documents issued by moneylenders.

9.—(1) Sub-section (2) of section 2 of the Companies (Particulars as to Directors) Act, 1917 (which requires certain particulars to be published in trade catalogues, trade circulars, show cards and business letters) shall apply with the necessary modifications to every company licensed under this Act.

(2) Without prejudice to the provisions of the last foregoing sub-section and of section 18 of the Registration of Business Names Act, 1916, a moneylender shall not, for the purposes of his business as such, issue or publish, or cause to be issued or published, any advertisement, circular, business letter, or other similar document which does not show—

(a) in such manner as to be not less conspicuous than any other name, the authorised name of the moneylender; and

(b) except in the case of an advertisement published in a newspaper, any name, other than his authorised name, under which the moneylender, and in the case of a firm any partner therein, was before the commencement of this Act registered as a moneylender under the Moneylenders Act, 1900;

and any moneylender who acts in contravention of this sub-section shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.

10 Restriction on moneylending advertisements, and prohibition of use of canvassers.

10.—(1) Subject to the provisions of the next following sub-section, no person shall knowingly send or deliver or cause to be sent or delivered to any person in Saorstát Eireann except in response to his written request any circular or other document advertising particulars of the name, address or telephone number of a moneylender, or containing an invitation—