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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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I used to own a shop with a cash machine in it on a 5 year

Customer Question

I used to own a shop with a cash machine in it on a 5 year agreement I had to sell the shop due to serious health problems the new owner said he would keep it on & it was sold with the business as being included with the fixtures & fittings the contracts were exchanged but 3 months later the new owner told the cash machine company that due to them messing him about that he did not want it.subsequently they have come back to me & said they are issuing a county court claim for 2 years lost revenue from the machine approx £2000 can you tell me were I stand
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

from what you say, do I understand that there was a formal agreement with regards to the sale of the business which provided that he would take on the liabilities of the cash machine agreement as part of the sale please?

JACUSTOMER-9pqefwbk- :

The list of items that were to stay with the shop I.e

JACUSTOMER-9pqefwbk- :

The cash machine was included in the list of things staying with the shop and was given to the estate agent who in turn supplied a copy to each solicitor the new owner said he was keeping everything on the list

Joshua :

thank you. Was there a provision in the agreement that refers to the new owner agreeing to take over liability for the payments from you under the agreement you have with the cash machine provider or is the sale agreement silent on this point?

JACUSTOMER-9pqefwbk- :

There were no payments to be made to the cash machine company it was a fully managed. machine they used to charge £1.95 to the users card as to a provision it came under fixtures & fittings in the sale agreement

Joshua :

They were entitled to a cut of the takings essetially that went through the cash machine?

JACUSTOMER-9pqefwbk- :

They used to take 1.95 directly from the users card I had nothing to do with it. I used to get 30p commission per transaction from them as commission for letting them have their machine in my shop. The commission was paid monthly.

Joshua :

thank you. Is there anything in the sale agreement for your business that specifies that the new owner will honour the terms of your agreement with the cash machine company or alternatively will take the fixtures and fittings subject to any liabilities attached thereto?

Joshua :

Were you represented in respect of the sale of your business by a professional adviser?

JACUSTOMER-9pqefwbk- :

Yes I was represented by a solicitor from eaton smith solicitors in huddersfield who dealt with the sale of the business.

Joshua :

thanks. Is there anything in the sale agreement for your business that specifies that the new owner will honour the terms of your agreement with the cash machine company or alternatively will take the fixtures and fittings subject to any liabilities attached thereto?

Joshua :

Thats my final question you'll be pleased to know!

JACUSTOMER-9pqefwbk- :

I do not know if there was or wasn't,t

Joshua :

that's fine thank you. The position from what you say is that you will likely have signed or agreed to a form of higher agreement or service agreement with the cash machine provider that entitles them to a cut of takings and provides obligations on your part to use the cash machine perhaps as your principal takings machine for the shop or something of that nature. the cash machine provider is in no way affected by your decision to sell the shop and their position will be that they still have a contract with you in respect of the cash machine because the sale does not affect their rights against you. in order to change the person responsible under the cash machine agreement, you would need one of two things:

Joshua :

1) you would need to arrange for the novation of the agreement with the cash machine company to the new owner which is a simple process which requires the agreement of the cash machine company to transfer all benefits and liability under the agreement to the new owner; or

Joshua :

2) you would require a term in your sale agreement with the new owner that he takes all liabilities in respect of fixtures and fittings or in particular the cash machine. this alternative approach does not change the agreement between you and the cash machine company and you will still be liable to them for any losses they suffer but it would mean that you can counterclaim is losses back from the new owner because he agreed to take over liability and has failed to do so and is therefore breached his agreement with you

Joshua :

the hopefully good news however is that because you are professionally represented, providing your solicitor was aware of the lease or supply agreement regarding the cash machine, the buck is likely to stop with your solicitor in terms of any potential liability you have against the cash machine company

Joshua :

your solicitor should have ensured and may well have done, that the new owner took on liability for any existing subsisting agreements in relation to fixtures providing your solicitor was made aware of them by you. if your solicitor failed to do so and you find that appropriate provisions have not been included in the sale agreement which makes the new a not so reliable, then any liability you find you are exposed to to the cash machine company should be recoverable under a negligence claim against your solicitor.

Joshua :

Accordingly, if you are not certain of your position with regards to the agreement, the first step would be to approach your solicitor to explain the situation and ask for him to demonstrate to you How liability was provided for in your agreement.

Joshua :

if the solicitor failed to do so then you have grounds for a potential complaint against the solicitor which initially should be made in writing to the firm. The complaint can then necessary be escalated to the legal ombudsman which has power to award compensation if it finds negligence on the part of the solicitor

Joshua :

http://www.legalombudsman.org.uk/consumer/

Joshua :

there is no charge for the ombudsman service

Joshua :

is there anything above I can clarify for you?

Joshua :

Does the above answer all your questions or is there anything further I can help you with?

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