No matter what industry you are in, you can't conduct business on your own. So every business has to have various agreements, contracts and terms in place.
These agreements can be between you and your customers, employees, suppliers or distributors, and are usually formalised by writing legally binding contracts between the parties involved.
Unfortunately, all too often when things start to go wrong we see businesses suddenly take an in depth look at their agreements only to find that they have an legally unenforceable contract or the agreement they signed doesn't cover what everyone thought it did.
It doesn't matter what kind of formal transaction it is, whether it's an employee contract, partnership agreement, purchase order, or terms of business with a customer, the agreement must be recognised legally by the courts for it to be enforceable if someone were to challenge it.
This is why it's important to understand the key components of a legally binding contract when drafting an agreement.
Unenforceable Contract Terms.
Legally binding contracts must include a 'bargain'. This is to say one party doing something in exchange for the other party doing something else; which is typically paying money.
But the exchange could also be exchanging services if money is not involved. The consideration has to be significant, but it does not necessarily need to be adequate. There is no law saying that a bargain must be of equal value, just that it must have some value.
Insufficient consideration could be when a contract allows for one party to avoid damages for failing to fulfil their end of the bargain which isn't mirrored by the other party.
Top industries for contract claims & disputesIACCM study on the Most Negotiated Terms & Conditions
Unfair or Unenforceable Contract Terms
Another common example of an unfair term are 'penalty clauses' where one party specifies a monetary amount that is payable upon breach of the contract which is disproportionate to the loss that the party would actually suffer due to that breach.
Does an agreement have to be in writing to be enforceable?
Legally binding contracts do not necessarily have to be written agreements, with a few exceptions such as property purchases/sales, so there are many oral or verbal contracts made everyday.
However, you should understand that it is always best to have an agreement written down and signed by all parties.
If not, you will be stuck with the burden of proving that the verbal contract exists and what the specific terms of the contract are. It is also more difficult to prove the 'intention to be bound' in an unwritten contract.
This is why it is always best to put agreements clearly in writing along with being signed and witnessed, so there will be less room for interpretation should you end up enforcing the contract.
How to avoid unenforceable contracts & agreements.
Ensure a contract does what you think it does
It can be all too easy to assume that what was agreed verbally has been translated perfectly into a written agreement. Often this isn't the case, and a party can be caught out by relying more of the 'sentiment' or 'spirit' of what was discussed rather than what made it into the written contract.
Therefore take time to speak to a solicitor about the purpose of the business arrangement and then ask them to review the wording of the draft agreement. The solicitor will then be able to firm up your contractual position and ensure the contract is fair.
Add a Dispute Resolution clause
Inserting a dispute resolution clause into a contract defines how the parties will seek to resolve differences or misunderstandings before they turn legal. To avoid litigation, a dispute resolution clause can point towards independent mediation or arbitration to settle the dispute in a fair and mutually agreeable way.
But even if alternative dispute resolution isn't an option for your type of agreement. If you operate in the UK, checking there is a clause stating that the contract is governed by the courts of England and Wales will ensure that any legal action takes place in your local jurisdiction.
Proactively review your contracts
You don't want to be in the position of relying on a contract's wording before checking that it does what you need it to.
Businesses can invoice clients early, wait patiently for payment, send chase emails and be optimistic that payment will someday finally land at the bank.
But sometimes those polite little reminders, sending copy invoices and monthly statements are just not enough to deal with those customers who are adamant they are not paying.
So what can you do to ensure your business is paid the money it is owed? How do you collect debts from customers?
Choosing how and when you need to take formal action can be difficult and there are a few informal options at your disposal before starting legal action. After all, the last thing you want to do is spend time and money going to court for every invoice that is overdue by a few days.
But when you've exhausted the chasing letters and phone calls, we wanted to share our experiences and tips on how to collect debt from a customer, starting with establishing your legal position on the debt.
34% of UK Small to Medium Enterprises (SMEs) choose to write off thousands of pounds of bad debt every year.
Proof of the debt.
In order to take a debt claim to court, you need to have some kind of evidence that the debt amount you wish to claim is due. In most cases a copy of your invoice, bill or order will suffice, however generally you should have evidence of:
- the total amount that was billed and is now overdue for payment from your customer (i.e. you gave them a bill or invoice)
- proof that goods were delivered or services provided (i.e. delivery was made or the job was complete)
- previous informal communication with the customer making them aware of the debt (i.e. email or text messages chasing payment)
- formal advanced notification to the debtor informing that you intend to take legal action (i.e. a Letter Before Action or Letter of Claim)
With the above steps and evidence in place, you should be in a good position to start legal proceedings against the debtor.
However if the customer disputes the money is owed, for example because they believe the goods were faulty, you may need to take steps to investigate and resolve the business dispute before proceeding with formal debt action.
Legal help with non-paying customers.
But once you do decide to go down a more formal route to secure a payment you have a few options:
Option 1 - Submit a debt claim yourself
To make a court claim on your own you can use the HMCTS Money Claim Online service. It offers a process to recover the money your business is owed by walking you through the submission of an online claim and paying a court fee.
You need to be aware that these are court proceedings and so you should familiarise yourself with the 'pre action' rules along with what happens should you win your claim and receive a judgment. Ensure you read the associated Money Claim Online User Guide thoroughly before starting the claim process.
Option 2 - Hire a debt collector
When you hire a debt collection agency they will start chasing the debt and in some scenarios begin the legal process to recover it through the courts. You should bear in mind that debt collection agencies don't have any special legal powers beyond what you can do yourself. Generally a debt collection agent will also take a proportion of any debt that they are successful in collecting to cover their fees.
Option 3 - Instruct Debt Recovery Solicitors
A Solicitor should provide some general advice on the process and your prospects along with a fixed fee of what they will charge. If their fees are more than the money you are seeking from your customer, then you'll be better going with another route. However experienced debt recovery solicitors should have a fee structure which complements the amount you are wishing to recover and the complexity of the issue (i.e. it will be more complicated if the debtor defends the claim or disputes the debt being owed).
In the majority of debt recovery claims, the initial solicitor's 'Letter Before Action' often does the trick and the customer will opt to pay their bill rather than face court proceedings from a law firm.
If court action is needed a solicitor can explain the risks and advise on items such as recovering court fees and any statutory late payment charge that can be made. For example, interest may be able to claimed on top of the debt (usually 8% above base rate) via the Late Payment of Commercial Debts Act.
You may feel bad 'hounding' a customer about paying their debt or even getting a solicitor involved, but you shouldn't. You did your job and it is not your fault they have failed to pay you in a timely manner.
Being understanding to your customers while knowing your legal rights is what all responsible businesses should aim for.
UK research indicates that one in four people have been bitten by a dog in their lifetime, with a third of bites requiring medical attention but only 0.6% requiring hospital attendance. So, while being seriously injured by a dog is relatively rare, any injury to a human which involves your pet will still be a cause for concern.
What happens if my dog bites someone?
In the immediate aftermath of a bite or attack, the police often become involved to assess if your animal is dangerous or could be considered out of control. The outcome of this investigation could be a warning, fine, banning order or even prison sentence in the most serious of cases.
But regardless of any action the police may take in a criminal capacity, you may still be subjected to civil legal proceedings in the form of a compensation claim made by the injured party.
If this occurs then you'll need to be aware of the options available in defending a dog related personal injury claim, and that you cannot always be held legally responsible for injuries that have been caused by your pet.
Insurance covering dog bite claims.
There are various insurance policies which you may have in place that can cover you in the event that a personal injury claim is made against you as a dog owner. Whether you dog bit someone on your property or in a public place (street, park, woods etc.)
- Pet Insurance – Many pet insurance products that are designed to cover vet bills also have 'third party liability' cover which may cover incidents caused by your animal. However, on some products this liability cover is an optional extra.
- Home Insurance – While not as common, depending on your buildings and contents insurance you may be covered for injuries to the public that occur on your property. However, there may be homeowner policy exclusions relating to animals or dangerous dogs.
- Membership – Some animal organisations (for example the Dogs Trust) include third party liability insurance if your dog causes damage or injury as part of their membership package.
- Public Liability Insurance - If the animal is used in connection with your business, such as being a dog handler, walker, canine security or a guard dog. Then your business public or employers' liability insurance may provide coverage.
Should you receive a claim, it's recommended to first check for any possible insurance policy, and if cover exists, report the claim to your insurer as soon as possible. They will then take over the handling of the claim and instruct a solicitor to act on your behalf.
Dog bite claim with no insurance
The Letter of Claim you receive informing you of the claim will need to be acknowledged in a certain timeframe (usually 21 days) so gaining legal advice as soon as this letter is received is highly recommended.
3,000 Postmen and Women are injured by dogs every year, equivalent to 7 incidents every day
The breed revealed to be the most responsible for attacks on delivery workers was German Shepherds, followed by Staffordshire Bull Terriers, Border Collies and then Labradors
Dog bites and the law.
The Animals Act
The act provides three tests that must be met before the owner or person in possession of the animal can be held liable for any damage that has been caused. Basically, these tests are that:
a. The damage or injury was likely to be caused by the animal unless it was restrained, and
b. It was caused by a characteristic of the animal, and
c. The characteristic was known to the owner or keeper of the animal.
While any dog has the ability to bite, they will generally only ever do this in unusual circumstances which may not be able to be reasonably foreseen by the keeper.
Proving negligence in dog bite cases
A person simply being bitten by a dog does not mean that the owner has been negligent. A claimant would need to show that they were aware that the dog attack could happen and failed to take adequate steps to prevent it.
Defences to a dog bite injury.
An experienced solicitor can investigate the circumstances of the incident, as well as the history of the animal, to present all mitigating factors on why you may not be liable for the injuries caused. For example, common dog bite law defences may include:
- If the animal was provoked in anyway.
- If warnings were ignored by the claimant.
- If dog has never previously demonstrated aggressive behaviour.
- If animals were fighting and a person placed themselves in danger to separate.
- If the claimant was trespassing, and the dog was guarding the property.
When it comes to the law, your beloved family pet is simply considered a piece of property that has inflicted damage on another person. So if you are placed in the position of defending a claim, ensure you seek the legal advice you need and your pet deserves.
Catalyst Law are team of legal professionals with over 20 years' experience helping businesses and people with their legal problems.
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