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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We are a small travel business selling B2B group tours. Our

Customer Question

We are a small travel business selling B2B group tours. Our client received our standard terms and conditions which state cancellations are free of charge outside 28days. At the same time he was also provided "additional information" that detailed a variation in payment and cancellation terms i.e. deposit 5 months prior, additional deposit 3 months prior and cancellations within 3 months to be charged.
He has stuck to all prior payment terms as above, but subsequently cancelled half of the group within 3months but outside 28days and is refusing to pay.
Please advise where we would stand.
Many thanks
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
HI.

Thank you for your question . My name is Jo and I will try to help with this.

How much notice has he given you and what costs have you incurred?
Customer: replied 3 years ago.

The cancellations came at 6wks prior and charges would equate to approx. £70k

Expert:  Jo C. replied 3 years ago.
Thanks.

I'm sorry if I'm missing the point but surely under the contract he was free to cancel at that time?
Customer: replied 3 years ago.

At the same time we sent the contract/ standard terms, he was also provided "additional information" that detailed a variation in payment and cancellation terms i.e. deposit 5 months prior, additional deposit 3 months prior and cancellations within 3 months to be charged.
He has stuck to all prior payment terms as above, but is now refusing to cover the cancellations that came within 3 months.

Expert:  Jo C. replied 3 years ago.
Just to let you know, I've asked somebody else to look at this for you as I'm not sure I'm the best person.
Expert:  Joshua replied 3 years ago.
Thanks for your question. Please kindly RATE my answer when you are satisfied

My colleague has asked me to look at this.

  1. May I ask why you choose to deal with the condition as a variation rather than produce a new set of terms including this variation provision?
  2. Was the variation specifcally discussed and agreed with the customer?
Customer: replied 3 years ago.


1. It is not often that we get variations and therefore the terms were just detailed in an e-mail with the standard terms attached.


2. The variation was advised prior to sending in writing as well as adhered to throughout by the client up to this time. The client agreed to them from the beginning

Expert:  Joshua replied 3 years ago.

my apologies for the delay in reverting to you. I have been out on appointments for much of the late afternoon and early evening.

 

I'm grateful for the above information.

 

As this is a business to business transaction, statutory legislation has limited input and the terms of the agreement are more readily enforced by the courts in their own right without substantive interference from legislation.

 

providing you can clearly demonstrate by reference to correspondence and documentation that the variation was both notified to the customer business and that on the balance of probability, the customer agreed to the condition variation, the condition will be enforceable and incorporated within the agreement subject as follows.

 

Was the above is true, you are under a common law duty to mitigate your losses. In other words, you cannot make a profit from their breach of contract but rather the law provides that you are entitled to be put in the position you would have been in had they not breached the contract.

 

What this means in practical terms is that where possible, you should attempt to resell the service to a third party upon agreement or request to do so by your original customer. where it is not possible to resell at the same price, you may consider reducing the cost, again in agreement with the original customer in order to achieve a resale. Any amount you are able to obtain by reselling the service should be deducted from the balance owed to you by the customer. You are entitled to deduct reasonable administrative expenses you incur in reselling the same.

 

Reselling is not necessarily the only option to mitigate costs. If you are able to mitigate costs in another way, such as by cancelling certain services which you no longer need as a result of the customer's cancellation, if this is more expedient, this can be an alternative approach.

 

Providing you can demonstrate that you have mitigated your losses, subject as above, you are entitled to claim the amounts due to you under the contract in accordance with the terms agreed.

 

There anything above I can clarify for you?

 

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