I understand that many businesses when they start up, are simply not in a position to focus on their terms of trading.  Some are tempted to “cut and paste” those of a similar business that they have come across, or pick and choose bits and pieces from their own customers’ and suppliers’ terms .  In my view it would be better to have none, than to go down that route.  Firstly, you run the risk of a claim for breach of copyright if you use wording belonging to someone else, and secondly, those terms may contain obligations affecting you which are not relevant to your business at all and may breach statutory requirements that apply to your business.

My first question when a client brings me his “cut and paste” terms is always “Do they reflect what you do in practice?”  You would be surprised at the number of times that the client doesn’t know because he hasn’t read them.  Although there are always provisions that will appear in all terms and conditions, such as to when payment is made and how goods or services are to be delivered, the remainder should set out what you are going to do for your customer, and more importantly, what you need your customer to do for you.  There is no magic to this – its simply stating what each party’s expectation is of the other so that there are no nasty surprises later on.

You then need to consider what statutory legislation will apply to you, and whether you can minimise its impact.  For example, if you are trading with consumers rather than businesses, they are entitled to much higher levels of protection.  If you are trading over the internet, there are certain information requirements that you must comply with.

Having the right terms and conditions in place should be viewed in the same way as having the right insurance in place.  Without them, you are at risk of a claim.

If you would like to talk about how you conduct your trading, please contact Jane Rudge on 0121 227 3885 or jrudge@thursfields.co.uk

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