Parksy
Moderator
If the OP of the other contract related thread feels upset or insulted in any way, all that he has to do is to contact a moderator and we will resolve the situation.
If the OP of the other contract related thread feels upset or insulted in any way, all that he has to do is to contact a moderator and we will resolve the situation.
Commercial contracts are negotiated and agreed by lawyers working for each party - a retail purchase contract is defined by the sellers' lawyers so are likely to one one sided - in reality, commercial contracts penalty clauses have no bearing on retail contracts.
Having worked with several very large contracts I’m aware of the difference but our contracts had no penalty clauses which if I’m correct are not allowed under English law. They did how contain clauses for liquidated damages, and we used those clauses particularly for late delivery or non performance. In many years I can categorically say my teams had no lawyers, and neither did the contractors teams. They were commercial contract specialists supporting the engineer and project teams.
I never said that the settlement for £50m was a penalty clause. I merely posted the information as a means of showing that even with large commercial departments HMG can get it wrong when unilaterally cancelling a contract. Perhaps they just thought they would get away with it as the company wouldn’t dare dispute it and risk not being awarded future contracts.
Hopefully Mr McP will take all our comments on board and let us all know the final result. They have been free ranging and maybe something or nothing will help him. At least it has had all the PCv brains whirring👏👏
The last Contract HMG got wrong took twenty years to settle causing hurt and grief to a lot of innocent people . Doubt we’ll be selling stuff to the Middle East again🤪🤪
I just wished to point out that at no time the OP of the other thread had pointed out of any time of any financial problems which the Prof had suggested . And should appologise for.
A lot of the Construction Contracts I worked with on multi million pound rebuilds did contain “Penalty” clauses or as we knew them “ Failure to perform”. Late completion penalties were included as indeed at the other end bonus awards.The larger contracts also allowed the Principal to hold retention monies for specific periods after the end of Completion for unforeseen snags etc.
Seems to me Clive there is no such thing as a Standard contract😁😁Gone full circle now!
Parksy
Moderator
Sorry old matey, but we don't need forum members being offended and demanding apologies on behalf of others.
Thanks that’s interesting we had similar aspects such as LD and most contracts had a retention to cover a period after completion, to ensure defects were cleared and warranty obligations were met. But they weren’t penalties but contract conditions based on agreed levels of performance. However the Supreme Court in 2015 did endorse the concept of penalties in certain circumstances. So things have moved on since I first retired in 2000.
Penalties in construction
Penalties in construction - Designing Buildings - Share your construction industry knowledge. In construction, the term 'penalty' typically refers to a financial payment imposed in the event of a breach of contract.
I have made it abundantly clear that I started this thread as a general thread and NOT specifically about any particular posting or person or incident. I admit it as been triggered by a recent thread which has reminded me about previous incidents where clearly the customer has not understood their liabilities when acceding to retail terms and conditions.
If anyone has assumed this thread was about a specific person or incident they are mistaken, but If it has offended any such person I can assure them it was not intentional. Other persons have introduced the name involved with a recent similar thread, not me. I cannot accept any responsibility for posts other than my own.
As far as I am concerned this thread was and is about the need for any person entering into a contract to purchase goods or services of the importance to review the terms and conditions, and if they do not meet with your expectations or needs to either renegotiate them, walk away or accept them and take the risk of a future breakdown.
20 years ago our local woodwork school proprietor died suddenly. The Landlord refused to cancel the Lease making the widow pay even though she couldn’t afford it. The entire Town was enraged but nothing we could do.
Taking the Profs fictional case on this thread only let me ask, “Is it fair a bereaved widow is stil liable for the rent or in Profs case if the prospective purchaser’s situation changes whereby he cannot now afford the caravan should he still have to complete or lose the deposit?
Never mind the Legal stuff, what happened to common decency or in my day Contracts with Force Majeure clauses to protect against this very scenario? Drugs kicking in now, ah sleep.
Taking the Profs fictional case on this thread only let me ask, “Is it fair a bereaved widow is stil liable for the rent or in Profs case if the prospective purchaser’s situation changes whereby he cannot now afford the caravan should he still have to complete or lose the deposit?
Never mind the Legal stuff, what happened to common decency or in my day Contracts with Force Majeure clauses to protect against this very scenario? Drugs kicking in now, ah sleep.
There is a huge difference between a business contract and a consumer contract so not even sure why they are being compared. Even in business you would employ lawyers to check the contract before signing as the T&Cs would be difficult to understand. The same cannot be said for a consumer contract.
Just to add that it is my understanding this is a consumer forum and not one involved in commercial enterprises? Is it possible to stick to the consumer side of the contracts.
As stated earlier, it is easy to state that if you do not like the T&Cs walk away. That would mean no vehicle, no caravan, no home and the list is endless!
Just to add that it is my understanding this is a consumer forum and not one involved in commercial enterprises? Is it possible to stick to the consumer side of the contracts.
As stated earlier, it is easy to state that if you do not like the T&Cs walk away. That would mean no vehicle, no caravan, no home and the list is endless!
You may have misunderstood my point. It was a relatively poor local renting an up market shed. Agreed we are not into commercial but a Dealer is commercial?
An individual like us should perhaps see a Force Majeure clause. ? What do you think?
I was not referring to any point made by yourself so not sure? We are consumers of goods and consumer contracts are supposed to be written in plain English and in a way that is easy to understand.
However the supplier can still insert unfair clauses and hope to get away with the customer signing anyway. It is only when there is an issue that the contract is challenged using current legislation. There is a lot of legislation protecting the consumer, but it is knowing which legislation to use for the issue in question.
Whilst my reason for starting this thread was to remind every one to understand the contracts they agree to, and of course for caravanner's that normally falls into the consumer category, exactly the same need applies to commercial contracts, where even more might be at stake. Granted there is specific legislation that covers consumers, however that doesn't mean there aren't strategies or shared areas of concern of interest.
I suspect the advent and subsequent explosion of contract T&C's came about because some people became greedy and decided that "common decency" wasn't biased enough in their favour!
I suspect the advent and subsequent explosion of contract T&C's came about because some people became greedy and decided that "common decency" wasn't biased enough in their favour!
As has been pointed out this was a commercial contract which I think should have been negotiated better or not accepted. Possibly the legal advice was suspect if taken, but the landlords claim would be against the estate of the deceased and assuming the widow was the executrix, only against her in that capacity, and even then I would hesitate to suggest for the full remaining term of the rental agreement, assuming it had some time to run.
It would be the landlords duty to minimise his losses which would require him to put it back on the market and re-let it as soon as reasonably possible. There are many imponderables in what we know but that is the basic provision in law although there may be factors that we do not know about.
Whilst this is not strictly about a purchase contract, there are some issues with UK commercial leases, that again means its important for all parties involved with agreeing to take on a lease read and understand the implications of the agreement, and may relate to the situation reported above.
There have been several case where property management companies agreed a for a small business to lease a shop premises for a prescribed number of years. For whatever reason the lessee, closed leaving the premises before the end of the lease, The Management company managed to find a new occupier, who signed up to pay the payments and all was happy, or so it seemed. The new occupier began to default on the payments, and also left the premises. The management company invoked the default procedure which allows them to revert to claiming payments for the first signed lease holder until the lease expires.
There have been several case where property management companies agreed a for a small business to lease a shop premises for a prescribed number of years. For whatever reason the lessee, closed leaving the premises before the end of the lease, The Management company managed to find a new occupier, who signed up to pay the payments and all was happy, or so it seemed. The new occupier began to default on the payments, and also left the premises. The management company invoked the default procedure which allows them to revert to claiming payments for the first signed lease holder until the lease expires.
Enshrined in UK law is the principle that a retailer is not obliged to sell you anything, in essence the potential customer makes an offer to purchase, and provided the seller is not using any illegal prejudice they can choose if they want to sell to you or not. It is up to both the seller and customer to agree the terms of the transaction.
These days the process has largely been preempted (simplified?) by retailers showing the advised retail price, and having prewritten T&C's., but in principle there is nothing to stop customers trying to renegotiate price and conditions.
As it stands, there is no requirement for a company to have pre written T&C's for their sales, and consequently, except for the customers statutory rights, there is no regulatory control of what they can include.
In a sellers market its likely the seller can be quite resolute in how they tie the contract up , but in a buyers market the seller may need to consider the customers wishes a bit more to prevent loosing sales to competitors.
As for what is actually written in the T*&C's, most companies these will have used a legal advisor to produce them, but as they do not have to be formally approved by any regulatory body before they are issued, they can include almost anything.
Again in the UK it is generally accepted that when a customer and retailer agree a contract,it's governed by the agreed terms, and the law will not intervene, unless one or other of the parties asserts there has been a breach of contract, or one party asserts one or more term is unfair,and of course in these modern times if one or more of the consumers protective rights have been breached.
T&C's may not be backed by specific legislation, they do form part of a contract in common law terms, and are likely to be upheld, unless they are found to be unfair or in breach of specific area's where legislation has been enacted.
This means customers cannot ride rough shod over T&C's they should be understood before entering into a contract.
These days the process has largely been preempted (simplified?) by retailers showing the advised retail price, and having prewritten T&C's., but in principle there is nothing to stop customers trying to renegotiate price and conditions.
As it stands, there is no requirement for a company to have pre written T&C's for their sales, and consequently, except for the customers statutory rights, there is no regulatory control of what they can include.
In a sellers market its likely the seller can be quite resolute in how they tie the contract up , but in a buyers market the seller may need to consider the customers wishes a bit more to prevent loosing sales to competitors.
As for what is actually written in the T*&C's, most companies these will have used a legal advisor to produce them, but as they do not have to be formally approved by any regulatory body before they are issued, they can include almost anything.
Again in the UK it is generally accepted that when a customer and retailer agree a contract,it's governed by the agreed terms, and the law will not intervene, unless one or other of the parties asserts there has been a breach of contract, or one party asserts one or more term is unfair,and of course in these modern times if one or more of the consumers protective rights have been breached.
T&C's may not be backed by specific legislation, they do form part of a contract in common law terms, and are likely to be upheld, unless they are found to be unfair or in breach of specific area's where legislation has been enacted.
This means customers cannot ride rough shod over T&C's they should be understood before entering into a contract.
Granted most T&Cs are unlikely to backed by any legislation as a supplier can add whatever they wish into the T&Cs.
By the same token we have consumer laws to protect consumers from unfair clauses and keeping a deposit may be an unfair clause as it is giving the supplier an advantage to profit unduly. Admin costs if fair and reasonable may be applied.
It is a pity that the OP who has a problem regarding a deposit has not updated us, but I think his appointment with a solicitor is only today?
If not, then why was it started if it is not connected to the other thread? Besides it was only my last sentence that referred to the other thread.
The varied opinions emanating from a number of people on this thread are impressive. I may say the same about another thread. No names.
I wonder if via our Mods ,PCv Editorial and Future plc the two threads could be referred to their Corporate Solicitors for a Legal Opinion This could become a future article for a number of the Future Plc magazines ?
I wonder if via our Mods ,PCv Editorial and Future plc the two threads could be referred to their Corporate Solicitors for a Legal Opinion This could become a future article for a number of the Future Plc magazines ?
Good idea except American Corporate Solicitors are probably not well versed in UK consumer laws and other legislation etc. Actually that applies to many UK solicitors as we found out to our cost.
You would need a specialist in UK consumer law for an genuine opinion otherwise you will get conflicting views as per the two threads currently running.
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