What a Ripoff....

[kimhollamby]

Re: A serious word of warning

I'll check the site again. As I said further up the thread it looks as though much of the material had one origin and I am too cautious about it. From memory, at least one mag here received a press release from this site quite a few weeks back. We tried to look at it then and its server was down, or the site had yet to be built.

 

[tripleace]

Re: A serious word of warning

Kim can you reply re my own site please

simon@dic.uk.co

 

[kimhollamby]

Re: A serious word of warning

Not forgotten but some thought required about your request and not had the time for that. Will answer, I promise.

 

[Guest]

Pheonix companies

I was so annoyed when we were first caught by one of these that I changed our terms of business. Our contracts now include 'I will pay personally if the business does not'. So any director signing is caught with a personal liability and we can persue whoever signs our contracts. They and the company can't try and get out of the liability by saying that they didn't have authority to sign.

The only rare times we've used it has been when a business has tried to avoid payment and when the wording's been pointed out, they've always paid.

 

[Guest]

Re: Useless!

sorry, broke the rules by using a search engine..

*******

In the case of Montgomery Litho v John Maxwell, it was held Mr. Maxwell was not personally liable a debt due by his now liquidated company.

Maxwell signed an application for credit on behalf of his company in connection with the supply of printing services, which provided:

"I have read and accepted the company's standard terms

and conditions

…. All transactions are subject to Standard Condition 7".

Standard Condidition 7 then provided:" In the case of a limited company the director responsible for opening a credit account with the printer and who signs the application shall be jointly and severally liable for any and all payments that become due to the printer".

The printer then sued Maxwell for the cost of printing services provided to the company.

The court decided that it was distinctly unusual for a director to sign an obligation guaranteeing the company's liability under the guise of these terms and conditions. Whilst it was possible to incorporate a personal guarantee of the type envisaged, to be effective it would have to be expressed in terms so as to give the director fair notice as to the import of the obligation he was taking on.

The court said for the director to be personally liable it would be essential to show the director he actually intended to take on board the company's liabilities. It was not clear from the form this was evident. The court stressed the importance of such conditions to be brought to the attention of the obligant fairly and reasonably where the undertaking was onerous or unusual. The court were satisfied the imposition of the personal guarantee is something unusual to be found within terms and conditions and whilst a personal guarantee may not of itself be unusual it was odd to find one hidden within terms and conditions of sale.

The lesson to be learnt is obvious. If you want to incorporate a personal guarantee this should either be done as a separate agreement, or, alternatively, if it is to be within the same form it must be stated as clear as crystal the fact the director will be personally bound in the event of the company failing to satisfy the company's debts.

 

[petem]

Re: Useless!

That'll be why the bank made me have a solictor explain the terms (who had to confirm that I had understood them) when I needed a personal director's guarantee for a loan.

 

[Guest]

No it\'s not!

Didn't know of this case, but:

We don't hide this bit in the terms and conditions. We put it clearly in the bit that they sign (I want to buy ... and I agree that payment will be made within 10 days ... I will pay if the company does not ... (signed, etc).

It seems that we actually comply with the ratio descidendi (even if I can't remember how to spell it). The whole thing about payment is too important to hide in the T&C and it needs to be upfront. I think this bit of our contract has only been tested in court once and it was found to be no problem. It's so clear that nobody else has even tried to wriggle out of payment. In short, it actually works!