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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3843
Experience:  Solicitors 2 years plus PQE
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I have a small trade supply business selling aluminium window

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I have a small trade supply business selling aluminium window & door products to domestic & commercial builders. All our quotations are subject to our standard terms & conditions of sale. We have a company who are not paying their bill because they said that we delivered the goods late & there were some defects with our products. We have checked what the company sent at the time of order & it was a purchase order with our quote number & no delivery dates. We offered to meet the manager of the firm on site where the goods have been fitted to go through any issues. The manager failed to turn up for the meeting & instead sent photographs of the defects & demanded they were rectified immediately. We offered to do so but told them we would have to arrange a date as we are only a small firm. Between this period 1 week, we have received an Email declaring they have appointed under their terms of engagement another company to rectify the defects at our expense. Can they do this legally? We have not entered into any agreement other than the purchase order & our quotation clearly states our terms & conditions.
Thank you for your question and welcome.
MY name is***** am a commercial and outsourcing lawyer and I will assist you.
Did they ever send you a copy of their terms of engagement?
When you provided your quote and your terms and conditions - did they at any point reject them or send their own purchase order with their own terms and conditions?
Kind regards
Customer: replied 3 years ago.

No they did not send a copy of their terms of engagement, & only emailed the purchase orders. They did not reject my terms & conditions but they did not pay the full 50% deposit up front which was agreed as I am a new business & the risk involved. We agreed to take 25% & the full value as we delivered the goods over a 2 week period. The final delivery was worth 15K & they only paid me 12K on delivery holding back 3K + my delivery charges. It was only after the final delivery did they start to email me any defects, but they had 3 deliveries previous to this date.

Hi, Thank you. Did their Purchase order have any terms and conditions printed on the back or refer to any terms and conditions? Kind regards AJ

Customer: replied 3 years ago.

No Nothing

Thank you.
I will deal with this in turn:
1. The Law:
- This comes down to what is known as "battle of the forms" - the last party to serve their terms and conditions on the other without rejection will be the basis of the terms and conditions used for the legal relations between the parties.
- You cannot bind someone to contractual terms, of which they were not made aware of and did not have an opportunity to accept or reject
2. The facts
- Ultimately the buyer is trying to unilaterally enforce their terms and conditions on you after a contract has been agreed and part performed;
- This as a matter of law will not work - the agreement is governed by your terms and conditions and they cannot retrospectively enforce their terms and conditions on you unless they were served on you before acceptance of the contract.
- They are arguing that the products are defective - you will ultimately have to bare some of this responsibility if this is the case. However they buyer will have to prove the products are defective if they want to bring a claim.
3. Remedy and defense;
- You have an unpaid invoice that the buyer is disputing;
- You are entitled to sue for this invoice if it remains unpaid in accordance with your terms and conditions;
- Bare in mind that the buyer may have a claim against you if they can prove the goods are defective;
- I suspect that they will also try and argue that they are not bound by your terms conditions as they only paid a 25% deposit. I would say that this probably wont be successful as you agreed to this as variation of your existing terms and conditions.
I look forward to hearing from you.
Kind regards
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