1% Sales Commission

[Chris_Robb]

Having sold Corsair, my boatyard has sent me an invoice for 1% commission on the sales price.

Corsair has been in the yard for 3 months only for winter storage. I have never seen a contract or terms and conditions, and quite frankly I was totally surprised that I received an invoice from them. They did not get involved in the sale or provide any input.

From a contractual standpoint, I do not need to pay (I Think) but from a moral point of view should I pay?

I say goodbye to Corsair tomorrow as she rolls down the slip. I will sail it round to Campers Marina in Gosport. Hope the engine does not blow a gaskett!

<hr width=100% size=1><P ID="edit"><FONT SIZE=-1>Edited by Chris_Robb on 07/04/2004 13:56 (server time).</FONT></P>

 

[jhr]

Cheeky gits!

Tell them to imitate a Pelican, and stick their bill up their @rse.

I don't see that you have any moral obligation to pay them a commission. No doubt they will have a statement of terms of business somewhere, which specifies that they have a right to charge a commission so if I were you, I'd check that you couldn't be deemed to have accepted this tacitly by (for example) having settled an invoice that has terms of business on the back, or containing a reference to where you can acquire a copy of their T&C.

From your posting, your boat is obviously still out of the water; I hope they don't refuse to launch her tomorrow if you haven't settled up.... /forums/images/icons/frown.gif. I wouldn't make any @rse/invoice interface suggestions until she's afloat. /forums/images/icons/wink.gif

<hr width=100% size=1>Je suis Marxiste - tendance Groucho

 

[kilkerr1]

It's outrageous. I coughed and spluttered a good deal when this issue was brought up a few weeks back and a certain marina had it in their contract that they would ask for a 1% commission on all boats sold in the marina. Apparently it's a common thing. But can you imagine the local council asking for a 1% commission when you sell your car just because it's been parked on the road outside your house..?!

*cough, splutter*

<hr width=100% size=1><A target="_blank" HREF=http://kilkerr.members.easyspace.com/santateresa_pics.htm>Santa Teresa and other t'ings</A>

 

[marina95]

Unfortunately, it is highly likely that if you signed a berthing or storage contract that somewhere in the small print there is a clause that states that they are able to charge a commission.

Having been caught out once with this where a refusal to pay and a series of nastygrams between myself and the yard culminating in a back-down after a threat to go to the local and yachting press they backed down.

Since then I have taken care to negotiate a strike out of the clause (if it exists) in subsequent dealings.

My feeling is that they put it there and they'll try it on if they can. Kick up a stink and I think you'll find that they back down.

Good luck!!

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[Chris_Robb]

I have settled their storage invoice which has on it "Terms of business available on request". I hope that doesn't stuff me.

As you say - once the boat is off the slip tomorrow - I won't say anything!

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[Chris_Robb]

I have never signed a contract or had site of their terms and conditions.


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[maxi]

You say "terms of business on request". It is my understanding that terms of busienss are unenforceable in law unless submitted as an integral component of the quotation of contract. Tell them to get knotted, even through a small claims court it would probably cost them more to bring the case than they would obtain, even if they won which seems unlikely.

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[Chris_Robb]

Letter already drafted - once new owners have taken her away tomorrow - will send it to them - nice and polite - but NO THANK YOU!




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[jhr]

I think you'd probably still be able to argue that you had never signed up to the commission, but I can see a slippery solicitor arguing that, even if you hadn't signed their terms and conditions, you had been offered the opportunity to inspect them and had entered into a contractual relationship with the yard (and hence implicitly accepted their terms) by virtue of storing your boat and paying the invoice. However, I am a grade A pessimist, so I'm probably being unneccessarily paranoid; also I am no solicitor and probably therefore 100% wrong.

However, as you say, get her in the water and then argue: Possession is 9/10 of the law!

<hr width=100% size=1>Je suis Marxiste - tendance Groucho

 

[boatless]

Since the yard didn't really care whether or not you sold your boat, morally you owe them nothing.

I, however, am absolutely delighted that you have sold your boat and are now free to buy the yacht of your dreams. Could you send me the 1% please?

ps Agree with others, they should have supplied you with t&cs.

<hr width=100% size=1>my opinion is complete rubbish, probably.

 

[Chris_Robb]

Probably not going to buy another boat at least not for some time. I have realised how much time I used to spend on her - and how much more I needed to spend. So actually it is a relief - but still sad that shes gone.

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[BlueSkyNick]

I sympathise with Chris's case, ie if there are no T's and C's, he should not have to pay any commission charges - but don't argue until the boat is launched.

However on a more general point, there are too many cases of small businesses not bothering to take customers to court, and too many customers who don't pay their bills due to a lack of sufficient threat.

SWMBO had a client who refused to pay £100, SWMBO took her to court and won. Had to take two half days out of the business, but at least it proved that the T's & C's were sound. It doesn't cost a huge amount to raise the court case papers, and usually results in a prompt payment, albeit sometimes with a disgruntled customer. One has to make a decision on the merits of each case, whether to proceed or not.

In summary, small businesses shouldn't shy away from persuing payment where they are very confident that it is due to them. All IMMHO of course.

<hr width=100% size=1>I'm average size, Its just that everybody else is short.

 

[Chris_Robb]

Had I seen such a clause at the time I contracted, I would have either gone elsewhere or crossed them out. By seeing the conditions at payment time - that cannot possibly have a bearing on the contract as that was 2 months earlier.

As you say - they can.................

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[marina95]

If you have not signed a contract you are golden. Don't even worry about it!! In order for a contract to be in-action an "exhange" has to be made between the two parties.

In this instance you'd normally expect this to be a contract which you accept by signing and money which they'd accept on their part as payment for the storage of your boat.

Cheeky is all I can say! Please do post their name once your boat has gone!

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[bedouin]

You - or the buyer - have to be a little careful on one point. Selling a boat is not like selling a car - different laws apply.

I believe that such debts would be regarded as being incurred by the boat, and so can go with the boat even when sold. The marina could hold the buyer liable and apply to have the boat arrested until the debt was settled. That would mean that no one would be able to use the boat until the dispute was resolved through the courts - if it went that far.

The sales contract you have signed with the vendor almost certainly warrants that the boat is sold free of any debt - so technically the buyer could sue you as well.

In practice I'm sure that no marina would pursue such a course but it could get very nasty very quickly

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[Chris_Robb]

I agree with you - the contract states "Free of any encumberances" However - without sight of the terms and conditions at the time I agreed to keep the boat there, then I do not feel that they have a case.



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[TwoStroke]

Doesn't matter if you haven't seen it. This should help you.

The Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083) provide that a term which has not been individually negotiated in a consumer contract is unfair (and hence non-binding on the consumer) if, contrary to the requirement of good faith, it causes a significant imbalance in the rights and obligations of the parties to the detriment of the consumer.

Under the Regulations, the Office of Fair Trading (OFT) has an obligation to consider any complaint made to it about the fairness of any contract term drawn up for general use. OFT may seek assurances and, if necessary, injunctions against those using terms which it considers to be unfair. /forums/images/icons/smile.gif



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[milltech]

It's a very old scam, in fact I can say that I personally changed the T&C's some years ago at Poole Harbour Yacht Club Marina (Salterns).

I think they called it an access charge then, the right for a would-be purchaser to tramp over their yard to view the boat. I argued that since both buyer and seller (in this case) were berth-holders on the marina the charge was absurd. I didn't pay but the T&C's used different wording the next year.

It's possible such things have been abandoned by most respectable traders, after all marina berths are so so expensive it might look a tad petty...



<hr width=100% size=1>John
<A target="_blank" HREF=http://www.allgadgets.co.uk>http://www.allgadgets.co.uk</A>

 

[Sybarite]

I would tend to agree with you.

Either it is a common practice that is generally known and acepted and is therefore implicit in any marina contract, or it is a condition that is explicitedly negotiated. Is it in the small print of the marina contract or were references made to general conditions which could be easily consulted?

Incidentally are there rules governing "small print" in the UK? There are in France; font size should not be less than (I believe) the equivalent of about 12 characters to the inch.

John


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[bedouin]

Oh - they certainly have a case. I think the fact that the condition is there in the contract means that the onus would be on you to prove that it was unfair - and I imagine that that would be enough for them to get the boat arrested (unless of course de minimiss applies).

Although morally I don't think the clause is reasonable, legally it may be difficult to challenge

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