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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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I had an agreement to receive £15,000 as an advance on

Resolved Question:

I had an agreement to receive £15,000 as an advance on commissions that I would earn in 2016 from selling products at a series of roadshow events across the UK during the year. The first 3 events set for January, February and March were cancelled by the business who and no events have taken place thus far. They have since made a decision to cancel all uk events. As such I am unable to sell the products and earn any commissions. The company are now demanding payment in full of this amount, despite me making arrangements to attend meetings in London, do a lot of work on venues and prepare marketing for these events. As the agreement was only to re-pay from commissions earned, and the way to earn those commissions was stopped (outside of my control) do I have to pay this back?
Submitted: 4 months ago.
Category: Law
Expert:  F E Smith replied 4 months ago.

Where is the company that made the advance based?

What kind of cost have you incurred to date?

This is the wording of the repayment clause? Thank you

Customer: replied 4 months ago.
The company is:
The Three Marketeers Inc.
50th Street, Global Plaza Tower
19th Floor, Suite 19-H
Panama City, PanamaTo date I have had three full days in London to act as a consultant in those meetings (Normally I charge £750 for half a day) as per my website (, travel expenses for these meetings (driving 160miles x 2) and approx 30 hours of phone calls, skype calls, chasing of the company that I was dealing with, giving advice and ideas on how to get things running, plus the agreement that I would step back my business activities in order to spend more time on this. The promise of more income was there, way beyond the £15,000.The agreement was made with conformation on email with this coming from the party giving the advance:
"I do want to reiterate though our understanding that an amount of £15.000 is lent to you in person as an Advance on Commissions, and that said amount will be refunded to me from the first £20.000 in future commissions earned by you, meaning that the first £20.000 you earn will not be paid out to you at all by The Three Marketeers Inc."
Customer: replied 4 months ago.
The only agreement signed and sent back was this (attached) for future commissions earned.
Customer: replied 4 months ago.
My issue here is that my opportunity to earn commissions was never made possible and that despite many attempts to help get things moving, they have decided to pull the plug on this and are asking for the full amount to be paid back by the end of July 2016. There is no way that I can do that.
Expert:  F E Smith replied 4 months ago.

Thank you.

The agreement is silent with regard to any advance of commissions. It is also silent with regard to refund of expenses.

You may currently be charging £750 for half a day as per your website but that doesn’t necessarily mean that you would recover that there that you have been receiving that. The website is dated 2016 and you would have to prove that historically, that was the kind of remuneration that you would get on a regular and consistent basis.

It is highly likely that if this ended up in court, the court would find that all the time that you spent in the preamble to this agreement were speculative and hence, not recoverable.

However the email is sufficient to explain that this £15,000 was a loan in advance of commission.

It also quite clearly says that repayment will be from future commissions and your point is well made that if there are no future commissions there is no repayment.

I am aware that many life insurance companies in the UK made development loans to life insurance brokers. The was to be repaid from commission and agreements, drafted both solicitors in the UK were extremely clear on that point.

The life-insurance companies subsequently withdrew from the market, closed the agencies and the life-insurance brokers had to go to another company. However the time was that they could not do that until the finance had been repaid. Catch 22. The loans to be repaid from commissions. The agencies had been closed. They got normal commissions.

Many got taken to court and lost. Even though the term was quite clearly that the repayments were to be made from commission (and there was no commission) the courts still found in favour of the insurance company and the brokers had to repay. Some went bankrupt.

The situation that you are in is very similar. It is clear that the agreement is that the money was a loan and that the loan was in advance of commissions and that the commissions were to be repaid as they were earned.

There is no mention in the agreement of the applicable law that it is likely to be in the United Kingdom/England & Wales is that is where the contract has been substantially performed. That might be difficult for the Panamanian company if they have no agents in the UK and no representation. However they could issue proceedings in Panama and get judgement in Panama and then enforce the Panamanian judgement in the UK.

I think you should avoid going to court and try to come to an arrangement to repay at least something even if it’s not the full amount. My suggestion would be about 50% although that decision is yours. If you are making an offer, I suggest that you get the offer made through a solicitor who can word it correctly as a Civil Procedure Rules part 36 offer which cannot be produced in court if the other side wish to try to assert that you have admitted that you owe this money and the only dispute can be over the terms of repayment.

If you don’t feel that you have to pay or don’t want to pay, and they are adamant they want their money back, then it would be for the court to decide if either you or they want to go that far.

Can I clarify anything for you?

Please do not forget to rate the service positive. It’s an important part of the process whereby experts get paid.

Best wishes


F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
F E Smith and other Law Specialists are ready to help you
Customer: replied 4 months ago.
Thanks for your time on this.I feel aggrieved that I should have to pay anything back because of the amount of time that I did spend trying to help Charlie (the owner of the business) create a series of roadshow events, plan them, give my advice and time as a marketing expert, agreed to scale back the marketing of my own business to give him more time, then agree that the only way the I would repay this money would be through commissions.There was nothing in the agreements to talk about the right he would have to ask for a reimbursement or refund so I duly signed the agreement and proceeded.Due to poor health he himself has been in and out of hospital and he's had family circumstances where his father in law has died. The circumstances led to the cancellation of events, one cancelled the day before I was due to travel to London.Alarm bells sounded from me when I also received a call from him to say that he wasn't able to make the event in London because he wasn't able to get the Eurostar from Brussels (where he lives) because he had no way to pay for it - he wanted me to pay for that ticket for him to travel into London.I feel I gave a lot of time to this project, my business suffered because it didn't devote all my time to announce a full refund of the money loaned, based on an agreement that it would be repaid from commissions earned.He is calling me tomorrow at 2 PM to have a further conversation. To settle it I would be happy if he accepted 50% but I would only pay this back on a timescale that would be suitable for me (£500 a month over 15 months). Do I mention this in the phone call or simply suggest that I would send a "without prejudice" letter or email to him?

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