Non paying customer

[Inoff the Red]

On 25/04/2019 at 09:56, AHPP said:

 

Can you talk us through what a statutory demand is and when they should be used (before/after litigation) please. I think I’ve worked it out but you explain things pretty well.

 

There is actually a very good guide to statutory demands here:-

https://www.gov.uk/statutory-demands

 

As I said in my post, what I was suggesting was a technical breach of the procedure but if received by someone after 5pm on Friday (when most lawyers have knocked off) that has not been through it before it can them cause major stress over the w/e and prompt them to pay to avoid the consequences. 

[Mick Dempsey]

Actually there is a lesson for us here.

 

Most clients pay on completion, some don’t.

 

It is clear the client never answered the emails because he had no need (or legal requirement) to, he paid a few days late, as quite a few people do, just to keep the money in his account as long as possible.

 

I will usually pay my chainsaw repair bills end of the month or if I’m a bit light in my account and waiting for a big cheque, I’ll hang on for a week or two.

 

Until it’s really tardy, don’t sweat it.

 

 

[forestboy1978]

On 24/04/2019 at 17:05, Inoff the Red said:

Without wishing to appear pedantic, to have an effective retention of title claim it is important to establish that the clause was incorporated into the contract. Merely putting the ROT clause on an invoice does not work because an invoice is a post contractual document (unless there is a history of trading in which case the clause on an invoice may be valid through course of dealing).

For one-off jobs or new customers include the ROT clause in any quote and order confirmation, that way it will be difficult for the customer to argue that it was not part of the contract. You also need to be careful about the wording of ROT clauses so best use something current from t'internet or incur the cost of getting a proper set of T&Cs from a solicitor. 

 

Depending on the materials you supply, the wording of the ROT clause can also be crucial. The most favoured clause is the so called "All monies" clause. This gives the right to recover any items you may have supplied if any monies are owing. Without this, it would be necessary to be able to identify any goods supplied to a specific unpaid invoice. For specialist jobs  identification of items subject to an o/s invoice may not be a problem.

 

The problem with ROT clauses comes when the work you have done is combined with work done by someone else or if your work is permanently attached to something. So an ROT claim for something bolted to another item would succeed because you can unbolt it. If it is welded onto something else then it would fail.

 

Other tactics:-

1. Send him an invoice for interest for the late payment of a debt plus £70 for admin.

2. Download a Statutory demand form from the Insolvency Service web site. Fill it in with details of your claim and then manually hand it to him or post it through his letterbox after office hours on a friday afternoon. The receipt of a document requiring action within 21 days to avoid the possibility of bankruptcy tends to focus the mind and ruin a weekend for them (this is particularly effective if someone bounces a cheque on you because it is difficult then for the debtor to dispute the debt.)  Without judgement the stat demand approach is an abuse of process but it can be an excellent psychological tool to concentrate the debtors mind.

 

 

Thanks for this excellent info. How the hell do you know all this stuff..

 

Does a quote presented via pdf that doesn't have a signature at the bottom, but via email is confirmed as being acceptable stand up in court if someone was to dispute anything?

 

I used to have people sign quotes but I noticed a significant drop in conversion once I implemented it so I stopped doing it. 

 

Ta

[Inoff the Red]

1 minute ago, forestboy1978 said:

Thanks for this excellent info. How the hell do you know all this stuff..

 

Does a quote presented via pdf that doesn't have a signature at the bottom, but via email is confirmed as being acceptable stand up in court if someone was to dispute anything?

 

I used to have people sign quotes but I noticed a significant drop in conversion once I implemented it so I stopped doing it. 

 

Ta

How do I know this stuff?...All part of the job. Although I am an accountant by profession, I spent 15+ years working in corporate recovery (helping businesses in the s*** to get out of it) and corporate finance (advising on buying/selling companies and stock exchange work). 

 

As for the answer to your question, let me try and explain it by going back to first principles (and apologies if this is bit long winded but stick with it).

 

The basis of any contract is offer and acceptance. The basis of the contract is therefore based on what you offered and what was accepted. If your quote is merely a description of the work you will do, when you will do it and the price you are charging then that will form the basis of the contract between you and your customer and it is not open for either party to unilaterally change the terms of that contract. (I have put that bit in bold because it is crucial to understanding potential pitfalls).

 

Referring back to the retention of title issue, if you supplied widgets to a customer who didn't pay, then without informing the customer prior to the contract that you retained title to items supplied until they had been paid for , then you could not legitimately recover those items because that was not an agreed part of the contract. 

Actually establishing whether a term has been included into a contract can also create difficulties. Merely putting your terms and conditions on an invoice and relying on them to be valid in any contract can be difficult. An invoice is a post contractual document and therefore the terms governing  the contract pre-date the invoice. If however, there is a regular course of dealing with a customer then it could be argued that the terms on the reverse of an invoice could be inferred to have been incorporated in future contracts but this could be open to challenge and is, imho, a big risk to take when there are simple ways of avoiding this potential pitfall.

 

To avoid a ruckus about what terms were actually agreed in a contract there are a number of strategies to avoid disputes. Examples are set out below but I appreciate that some of these may be inappropriate/ not worth the ball ache for small owner managed businesses:-

 

1.  Have a formal set of terms and conditions pre printed which are sent out customers with a request to sign and return an acknowledgement of acceptance. A more subtle way of doing this is to enclose a set of T&Cs with a form which is effective a request by the customer to open a credit account with the supplier. Somewhere on the form is a clause to the effect that application for a credit account is acknowledgement of acceptance of the T&Cs.

2. Include the T&Cs on a quote. If they are printed on the reverse side of the quote, make sure that there is reference to them on the face of quote to draw the attention of the reader to the content on the back. Failure to do this could give a reason to dispute their inclusion into a contract. (Again this risk could diminish if there is a regular course of dealing between the parties).

 

 As for proof of acceptance of the terms within a contract , the increasing use of email has changed things and if a matter ever got to court then the matter would be decided on the facts. If your quote sets out the terms and price, work to be done including a start date etc then in the absence of anything in writing / email to the contrary if your customer sought to avoid accepting any terms contained therein I think you could argue that the fact that he let you onto site to do the work could be deemed to prove acceptance although it does introduce an element of risk.

If circumstances allow and you have had no email acceptance from the customer, then it may strengthen your hand in any future dispute if a day or so prior to starting you send a further email confirming the start date for the work to be done in accordance with and subject to the terms of the quotation.

 

As said previously allowing access to the site may be deemed acceptance of your terms however, if you were merely selling items to a customer which would be delivered to his premises, then without some definitive proof of acceptance then any terms in the quote may be disputed so you would need to weigh up the risk.

 

 

A further wrinkle in the T&C saga, is when you send a quote with terms of sale and the customer submits a formal order which contains their terms of purchase. Unless challenged by the supplier, the purchasers  terms will govern the contract.

 

Hope this helps but please note I am not a lawyer but have sat through countless hours in meetings negotiating contracts etc so I have an idea of basics but I would suggest seeking professional legal advice if you want to establish a robust set of T&Cs. 

There is a temptation to grab a set of T&Cs from the back of a suppliers invoice and copy those. I have come across a set, written in ultra small print which contained the names of three different companies where, I suspect, someone cribbed a set but didn't do a good enough proof reading job and didn't change the name of the supplier company throughout the T&Cs and someone merely typed what they were given without question. Another company subsequently cribbed the set and again did not do a proper proof reading job. The other danger with cribbing someone else terms is that they may be up to date.

 

If you need T&Cs is there a trade body that can supply a model set?

 

[Mark Bolam]

Glad you got sorted mate.

I went payment due on receipt of invoice years ago, and I make a point of mentioning that at quote stage.

If they get funny then it’s always a sign.

Giving domestic customers 14 days just gives them 14 days before they start messing.

Most people are dead straight, they’ll tell me if they can’t afford the job because of holidays, new car or whatever, and we’ll arrange to do it when they can.

[eggsarascal]

9 minutes ago, Mark Bolam said:

Glad you got sorted mate.

I went payment due on receipt of invoice years ago, and I make a point of mentioning that at quote stage.

If they get funny then it’s always a sign.

Giving domestic customers 14 days just gives them 14 days before they start messing.

Most people are dead straight, they’ll tell me if they can’t afford the job because of holidays, new car or whatever, and we’ll arrange to do it when they can.

Me too, although mine say on completion of works. I did a job last week and the bloke paid me before my tools were back in the van. Same today, worked for a company that I'll be doing quite a bit for, the agreement is they pay me every Friday. The work is done, I want paying. End of.

[forestboy1978]

On 26/04/2019 at 20:30, Inoff the Red said:

How do I know this stuff?...All part of the job. Although I am an accountant by profession, I spent 15+ years working in corporate recovery (helping businesses in the s*** to get out of it) and corporate finance (advising on buying/selling companies and stock exchange work). 

 

As for the answer to your question, let me try and explain it by going back to first principles (and apologies if this is bit long winded but stick with it).

 

The basis of any contract is offer and acceptance. The basis of the contract is therefore based on what you offered and what was accepted. If your quote is merely a description of the work you will do, when you will do it and the price you are charging then that will form the basis of the contract between you and your customer and it is not open for either party to unilaterally change the terms of that contract. (I have put that bit in bold because it is crucial to understanding potential pitfalls).

 

Referring back to the retention of title issue, if you supplied widgets to a customer who didn't pay, then without informing the customer prior to the contract that you retained title to items supplied until they had been paid for , then you could not legitimately recover those items because that was not an agreed part of the contract. 

Actually establishing whether a term has been included into a contract can also create difficulties. Merely putting your terms and conditions on an invoice and relying on them to be valid in any contract can be difficult. An invoice is a post contractual document and therefore the terms governing  the contract pre-date the invoice. If however, there is a regular course of dealing with a customer then it could be argued that the terms on the reverse of an invoice could be inferred to have been incorporated in future contracts but this could be open to challenge and is, imho, a big risk to take when there are simple ways of avoiding this potential pitfall.

 

To avoid a ruckus about what terms were actually agreed in a contract there are a number of strategies to avoid disputes. Examples are set out below but I appreciate that some of these may be inappropriate/ not worth the ball ache for small owner managed businesses:-

 

1.  Have a formal set of terms and conditions pre printed which are sent out customers with a request to sign and return an acknowledgement of acceptance. A more subtle way of doing this is to enclose a set of T&Cs with a form which is effective a request by the customer to open a credit account with the supplier. Somewhere on the form is a clause to the effect that application for a credit account is acknowledgement of acceptance of the T&Cs.

2. Include the T&Cs on a quote. If they are printed on the reverse side of the quote, make sure that there is reference to them on the face of quote to draw the attention of the reader to the content on the back. Failure to do this could give a reason to dispute their inclusion into a contract. (Again this risk could diminish if there is a regular course of dealing between the parties).

 

 As for proof of acceptance of the terms within a contract , the increasing use of email has changed things and if a matter ever got to court then the matter would be decided on the facts. If your quote sets out the terms and price, work to be done including a start date etc then in the absence of anything in writing / email to the contrary if your customer sought to avoid accepting any terms contained therein I think you could argue that the fact that he let you onto site to do the work could be deemed to prove acceptance although it does introduce an element of risk.

If circumstances allow and you have had no email acceptance from the customer, then it may strengthen your hand in any future dispute if a day or so prior to starting you send a further email confirming the start date for the work to be done in accordance with and subject to the terms of the quotation.

 

As said previously allowing access to the site may be deemed acceptance of your terms however, if you were merely selling items to a customer which would be delivered to his premises, then without some definitive proof of acceptance then any terms in the quote may be disputed so you would need to weigh up the risk.

 

 

A further wrinkle in the T&C saga, is when you send a quote with terms of sale and the customer submits a formal order which contains their terms of purchase. Unless challenged by the supplier, the purchasers  terms will govern the contract.

 

Hope this helps but please note I am not a lawyer but have sat through countless hours in meetings negotiating contracts etc so I have an idea of basics but I would suggest seeking professional legal advice if you want to establish a robust set of T&Cs. 

There is a temptation to grab a set of T&Cs from the back of a suppliers invoice and copy those. I have come across a set, written in ultra small print which contained the names of three different companies where, I suspect, someone cribbed a set but didn't do a good enough proof reading job and didn't change the name of the supplier company throughout the T&Cs and someone merely typed what they were given without question. Another company subsequently cribbed the set and again did not do a proper proof reading job. The other danger with cribbing someone else terms is that they may be up to date.

 

If you need T&Cs is there a trade body that can supply a model set?

 

Thanks very much, again, for this info. 

 

As far as I'm aware there is not. I do have some of my own terms and conditions that I've pulled out of my ass that seem to work OK but it's back to the whole, no one has signed anything scenario. 

 

I may start asking people who confirm jobs over the phone to please send a brief email confirming they are happy with the quote. I would imagine, this correspondence, along unsigned quotation pdf and images of work carried out, a small claims court would be sated in my favour in most cases.