Presentation on entering into a contractual relationship with your customers.

1. EFEFECTIVE DEBT MANAGEMENT
Getting the contract
right first time!

2. Know who you are contracting
with
• Consumer
• Limited company – part of group
• Individual trading as a business
• Partnership

3. Why is it important!
• Consumers have greater protection under the law –
eg terms must be “fair” and in “plain, intelligible
language”
• Limited company – part of group? –
even less protection under the law, but
liability limited
• Individual trading as a business – less
protection – unlimited liability
• Partnership – identity of partners?
Unlimited liability unless LLP

4. More importantly...
• You need to run credit checks on the right
individual/entity
• You may need to consider parent
company guarantees when dealing with
part of a group
• You may need to consider personal guarantees
from directors of limited companies
• Knowing who to claim against is key
when things go wrong

5. • Think about credit checks where in doubt
(eg Experian,Equifax)
• Use Companies House on line service to
check company names and numbers
• Set appropriate credit limits and stick to
them, but review them regularly
• Monitor payment histories closely to
be first in the queue when things go
wrong

6. • May all be expressed to be subject to the
supplier’s or customer’s standard terms
• Amount to offers and counter offers
• Enquiries, quotations, orders, order
acknowledgements, delivery notes, invoices
Battle of the forms
• Reality is, there is no formal acceptance
• Both parties consider that there is a
contract?

7. • For the avoidance of doubt, get the other party to
sign and return the terms
• Making contracts by phone? – Expressly agree
your terms are to apply
• Generally, the last “shot” before performance wins…
Battle of the forms – how to win?
• Fax and email? – Make sure you send a copy
of your terms
• But bear in mind – standard terms are only
suitable for standard transactions

8. • Limit or exclude your liability in some circumstances if
something goes wrong – subject to reasonableness
• Where appropriate, provide that you retain
ownership of the goods until they are paid for
• Suitably drafted terms and conditions can…
Why do you need to win?
• Choose the governing law in international contracts
• Provide the right to terminate/suspend all contracts
in the event of late payment

9. • Read them, check that you can comply with them,
and make sure that you do
• If you do need to change them, focus on the
important terms
• If customers insist on trading on their standard
terms…
What if you can’t win?
• Make sure that any changes are effective – eg do
the terms require them to be in writing?
• Use side letters to amend standard terms, or
incorporate other documents

10. • Vary them by agreement, or use a specifically
drafted contract – eg long term supply agreement?
• You can incorporate standard terms in a
specifically drafted contract – deal with what’s to
happen in the event of any conflict
• Standard terms and conditions are not always
suitable…
Non-standard contracts

11. Implied terms
• Sale of Goods Act 1979 – implied terms as to
quality, title, fitness for purpose
• Supply of Goods and Services Act 1982 – implied
terms that the supplier will carry out the service
with reasonable skill and care
• Also under the 1982 Act, implied term that
services will carried out in a reasonable time
for a reasonable charge

12. Late payment of Commercial
Debts (Interest) Act 1998
• Applies only to ‘commercial’ debts – ie where both
parties trading in the course of a business
• Currently entitled to interest at 8.5% above base
rate on ‘overdue’ debts
• Also, entitlement to fixed ‘compensation for
late payment’ :
– Less than £1000 - £40
– £1000 to £10,000 - £70
– £10,000 or more - £100

13. Effective variation
• Possible to vary contract terms after formation if
both parties agree
• Any variation must be supported by consideration
– both parties must give something to make the new
bargain effective
• If the original contract provides for a specific
method of variation – use it

14. Getting the foundations right -
conclusions
• Be certain – identification of the parties, objectives of
the contract
• Be aware – when you are entering into binding
contracts
• Be clear – on all commercial and legal terms
• Be express – don’t leave it to chance
• Be appropriate – standard conditions, individually
negotiated contracts
• Be alert – risks, rights and remedies

15. On behalf of Mercian Law
we would like to thank
you for attending
If you would like any further information please
contact Verity Grigg on 0844 736 1980
verity.grigg@mercianlaw.com