No Warranty No Clarity

This blog is part 2 of a series of 5 that is preoccupied with small business using contracts to avoid contractual disputes. Court is an expensive pursuit and building self-remedy or clauses into your contract, that are enforceable and offer solutions to problems that may arise is practically useful to small businesses. A considered contract can help you save money, time and effort.

Warranty in simple terms means performance. So outlining how the product or service will perform seems obvious but in many cases, the details provided are scant at best. In many cases, the contract generally fails to outline the key aspects of performance and in turn creates ambiguity. It’s this grey area that can lead to further issues, as during times of dispute, areas of uncertainty become points of discussion or argument.

This gets even more troublesome when there’s a returns policy or a maintenance/service agreement to support post installation or delivery. Stating what is covered by the contract with regards to the basic product’s functionality is one thing but when something breaks or fails to work, what then? Remember these products or service are manufactured and delivered by humans, so things happen, the important thing is outlining what happens next?

Going to the trouble of employing the right contract drafter to ask the right questions and create a contract that is designed to help both parties work together long-term, is worthwhile. Contracts are avoided by those who see no need for outlining the negatives…..but knowing what might happen in the event of….is arguably good customer service and is considerate to both you and your customers time and energy.

The next blog will focus on intellectual property…..

A change in the law leads to new liability for Design and Planners.

Changes to the Construction (Design and Management) regulations 2015, means that those companies (including sole traders), that offer design and planning services to both consumer (householders) and businesses could be liable for health and safety breaches on site even though the builder is the one doing the work.

Not unlike the smoking ban the liability is on those with a lot to lose, the law in that instance targets the smoker through the publican for having a person smoking on the premises, this act pushes the owner to act.  Laws are anthropological, they drive behaviour, whether you agree or disagree with them, it still means the law needs to be adhered to and in the example of the design and planner navigated so their risk is managed and the business protected.

When laws are structured like so, I can’t help but feel more than a little sympathy for the – in this instance – the design and planner who now starts the process of introducing a standard to the chain for events that will lead to a building being built.

We can see why the changes are in place, trying to raise the standard is the goal, the final property will be eligible for warranty and will be re-saleable, a marketable property as opposed to that of a property built based on poor standards which could lead to a disastrous set of circumstances.

This sector is already full of regulation but this new health and Safety legislation will introduce more complexity and challenges for all involved.

So, in a situation where there are multiple contractors, there will be a pressure on design and planning companies to establish the process before a shovel is in the ground.

Create Ts and Cs draft contracts that are relevant to both your business and your industry or sector.  Call us for a quote today 0141 5856384.

Is an unsigned contract enforceable?

Is an unsigned contract enforceable?

Many clients don’t come to us until they have a problem. A contract helps a businesses to manage risks but what if it is found to be unenforceable? We have been asked all the common questions – ‘Is an email a binding contract?’, ‘We have a verbal agreement, is this enforceable?’, ‘My client never signed the contract but is it still binding?’ etc.

But there is so much conflicting information available that it can often be difficult to determine an answer to these questions. If your contract is unenforceable then it means the business can end up losing out.

Looking on the internet business forums, there are thousands of questions relating to this topic. People are worried that their contract is not binding and they will not get paid or be left open to client disputes. And they have every right to be worried.

Email or a verbal agreements still count as a contract, but there can be a number of problems like proving what the terms of the contract are if it has been agreed verbally, or what terms are enforceable if it is through email. If there has been no signature it can prove difficult to determine whether the terms were actually agreed.

It’s understandable that businesses feel they may not always need a contract. If it is a repeat client, friend or known associate there can be a mutual feeling of trust, so it appears like there would be no need for anything to be put in writing formally. However, this can jeopardise and even ruin relationships; so, why risk these friendships?  A changes of client contact or peoples personal circumstances can lead to them reacting differently.  Without a contract existing relationship run the risk of turning sour.  A contract outlines what has been agreed and helps the business and client to stay protected. It allows both parties to understand what to do in any given situation, and helps to remedy any problems – therefore protecting the relationship.

It is certain that some agreements will lead to problems and by not having a signed contract it can lead to expensive legal battles.

Lord Justice Clarke has previously been quoted saying; “The perils of beginning work without agreeing the precise basis upon which it is to be done. The moral of the story is to agree first and to start work later.”

We would always recommend having a contract and ensuring that it is signed by every client. It is far safer to wait until the ink is dry before starting work.

The Contract Clinic; one year on

The Contract Clinic; one year on

In November 2012 we (Create Ts and Cs and UWS), with the essential help from MEPC (who own and manage Hillington Park Innovation Centre) launched the Contract Clinic.  The team consisted of David Reilly, director at Create Ts and Cs and Dale McFadzean an academic solicitor and his team of law students.  The aim was to support young companies who have encountered a contractual issue, analyse the problem or query and provide options to help them overcome the issue.  The service is aimed at students or those who are starting a business, and who can’t afford legal advice and require support to crunch a contractual problem or discuss a particular contractual issue.

“We believe if a young company in the early stages of development encounters a contractual issue, if they are supported through the process their chances of sustaining their business increases”.

“The Contract Clinic at Hillington Park Innovation Centre continues to be a success story for all parties concerned. This innovative approach to advice giving and legal education allows law students from the University of the West of Scotland to participate in giving legal advice to small and start-up businesses in and around the Renfrewshire area. Students who have participated so far have gained invaluable employability skills which will better equip them for the competitive graduate marketplace. At the same time, they are also learning first-hand about the benefits of pro bono activity for the local community and it is hoped that they will carry this ethos with them into the workplace. I have been delighted at the positive feedback received from some of the clients to date, and with the continued support from Create Ts and Cs and HPIC the Clinic can only go from strength to strength.” Dale McFadzean, academic solicitor, UWS.

What the Contract Clinic clients had to say;

“The contract Clinic was like a brain-storming workshop and it really got me thinking seriously about the importance of having a well-written set of terms and conditions that are actually relevant to how my business works.  It’s clear they are experts in their field. Not only can spot the potential pitfalls, but he knows how to prepare for them and avoid them by having a well-planned and documented format in place.  It was really helpful to be able to discuss this in an informal, relaxed way without feeling like I was being judged for anything that I hadn’t got quite right.  I appreciate the clear, honest advice from David, Dale and the team.”  Nicki Chapman, Director, Black and White Media.

“Contract Clinic offered a quick and convenient service, addressing the key contract review aspects in a convenient and manageable way”.  David Mummery, MD, Flexar.

The Contract Clinic will continue on the last Friday of every month at Hillington Park Innovation Centre.  Simply email or call 0141 585 6384 to book your place.

Create Ts and Cs provide a bespoke set of Terms and Conditions for your business at a fixed price, this unique approach to individualising commercial Terms and Conditions allow Start up and SME sized businesses the opportunity to protect themselves, manage risk and guard against future unnecessary disputes at an affordable price. Download: terms & conditions | privacy policy