What should be left out? [Trading terms series - article #4] Honestly, you see a lot of rubbish in trading terms. I'm never sure if some terms are there because of sheer inertia (they looked wise in 1998 and haven't been reviewed since), or due to sloppy design - but what you leave out is also important. This week, I'm writing all about trading terms, to help get business owners on the right track - to explore what trading terms are for, how to make them work, what to include, and what to leave out. Here are some things which should definitely be left out: * Crippling Intellectual Property restrictions. I mentioned this IP topic on Wednesday in the 'nice to have' list - but you do need to be very careful how far you go. It's appropriate to retain IP in some things (perhaps to license them to the customer for their own agreed purposes and use) - but the customer may expect (and need) absolute ownership of some of the work product. If you go too far here, then you risk failing to deliver what the customer bargained for - that could be very unfair. * Unfair contract terms. I wrote a whole LinkedIn series about unfair contract terms in late 2022 - it can be found here: https://buff.ly/3ApdFbu. The consequences of UCTs have become much worse for suppliers recently (with the ACCC looking to chase fines for use of UCTs) , so these really need to be avoided. Nearly every set of client trading terms I review contains at least a few UCTs, and for some of them - it's nearly every clause. * General disclaimers of liability (or indemnities against liability, or both). They're not COMPLETELY useless but they are pretty dangerous for so many reasons, including because they: - encourage sloppy thinking about scope; - are often inconsistent with your Australian Consumer Law ('ACL') or other mandatory duties; - can give a false sense of security; - may be unfair contract terms; - can, at times, interfere with your insurance coverage in unexpected ways. This is not to say that you should not limit liability in your trading terms - you definitely need to do that (see article #2) - but it needs to be done skilfully, in an appropriate and layered way. * Ancient terms about bailment, holding proceeds of sale on trust, owning admixed goods and similar 'dinosaurs'. Please don't take this comment as dismissive - these points should be considered, but we need to recognise that legislation has changed some of these concepts, since some of those ancient terms were first written (in a previous century). Current terms need to match the reality of your actual business practices. * Extremely short inspection timeframes or time limits for defects (see above comments about unfair contract terms and ACL issues). Check in on Tuesday for the final instalment of 'all things trading terms'. #tradingterms #commerciallaw #QldLaw
Stephen Robertson’s Post
More Relevant Posts
-
Someone had to do the tough job at the Salvos Red Shield Appeal launch! https://lnkd.in/g75J8MB5
-
-
This week, I am speaking about 'Managing liability and risk for business owners' at the Australian Plumbing & Gas Conference 2024. I have strong views about this topic - I've seen too many suboptimal outcomes for business owners, over the years. In many cases I have thought: "What could have been done differently, to avoid this situation...?" Well, you can hear my views on this (focusing on terms + credit process) if you're attending. The headings for my slides will illustrate my themes nicely: - Common problems – terms & conditions - How should you approach terms & credit? - Know your customer - Practical stuff for your T&Cs - Common errors & technical problems - Communicating your terms (effectively) - Tools to assist - PPS registration - Accepting other terms – important tips This will be a practical presentation with plenty of opportunity for questions and discussion (and a panel following). I'd say "I'm looking forward to it"... but the truth is I'm a bit nervous about doing it - I'm more used to 'behind the scenes' work. Wish me luck!
-
-
I'm concerned that the ACCC is engaging in a little 'misleading and deceptive' media releasing before Christmas (pun slightly intended) In my opinion, there is just too much 'spin' in their latest (Friday 15th) media release about unfair contract terms in franchise agts. The headline quote from an ACCC Deputy Chair is: “... franchisors are failing to grasp the importance of complying with the unfair contract terms provisions of the ACL. Every franchising agreement we reviewed contained potentially unfair contract terms". The word 'potentially' does a lot of work in that last sentence. Let's put this quote in context - it's based on a report analysing 10 franchise agreements, targeted for review by the ACCC. The report calls them "targeted franchising compliance checks". Despite choosing newer and smaller franchisors, the report concluded that: "We are pleased to report that the documents we assessed were largely compliant with the Franchising Code and we did not identify any systemic issues or concerns under the code." , but then goes on to infer that the ACCC might be inclined to take action on UCTs in the franchise agts anyway. The very headline of the media release conveys the threat: "Franchisors warned to remove unfair contract terms or risk legal action" I don't take issue with the importance of the UCT issue, nor with (some of) the substantive conclusions in the report - it's the tone and (lack of) efficacy of this media release which concerns me. Unfair contract terms (UCTs) are a serious and confronting issue for most businesses at the present time. We've done a lot of work on UCTs across a period of about 9 years - not just recently - and it is difficult, confusing stuff at times. There is a lack of clear case law and a lack of clear guidance about many issues and mature, thoughtful minds will differ on what is and isn't an unfair term. Listing 'potential' UCTs in most B2B contracts will take quite a long time.... In my experience, most franchisors already take their legal responsibilities really seriously and strive to comply with them. This media release (5 working days before Christmas) seems to me to be an unfair and unproductive pressure tactic by the ACCC - a hammer to crack an egg. There are far better targets around for the ACCC to advance its UCT agenda against than Australia's (already highly regulated) franchisors. The report itself (linked from the media release) is more illuminating ... except for the section on termination rights which genuinely baffled me ... and I will say some more about that in upcoming posts. Link to the media release is in the first comment. #unfairterms #franchising
-
This week you will face Important things (things which have to get done to achieve things, or avoid consequences). And you will face Urgent things (things which other people want done urgently before🎄) Make sure you remember and act on the difference between Important and Urgent - because it’s probably not humanly possible to do them all.
-
Business development as a lawyer has never come naturally to me at all - I still find it challenging and often uncomfortable. What has made it easier, and more manageable, is to see BD as a series of practical skills and activities which can be improved through learning, effort and discipline (much like everything else in legal practice really!) Today, I am sharing some of the key resources and tools which help me - in case they might also help you. (To avoid this post becoming a link-fest, I will include links to the mentioned resources in the first comment.) The first helpful thing is to have the right mindset. You may be naturally good at some things and naturally poorer at others. (Side note: we're not as good at assessing our own skills and aptitudes as we might think). Maintaining a growth mindset - that our minds are 'learning engines' - we are not fixed in place or static; we are adaptable works-in-progress - has been a key aid for me. See the work of Carol Dweck (in the cover image, and linked below). How to feed that learning engine? Try the weekly email from Jay Harrington. It covers different topics, all in the ‘business development for law practices’ theme - it is free every week. Jay seems to be a great fan of Charlie Munger (of Berkshire Hathaway fame) and David Maister (foundational 1990's thinker in professional service firm management), but with modern twists. Though American, Jay's advice is virtually all relevant to Australian lawyers. The other (Australian) source I unreservedly recommend is Sue-Ella Prodonovich. I have heard Sue-Ella present in person (at a fairly tense session covering some difficult topics) and she was fantastic and intensely pragmatic – and again, she writes extremely practical and useful articles, worth fueling your learning engine with. I hope to hear her in person again in 2024! If you want to build your own business development skills in practical ways and / or encourage your staff to do so, then you cannot go wrong with these two sources. Now, a couple of practical tools which help me to manage - I use Buffer and Pipedrive. Buffer is a simple tool which helps with managing LinkedIn (or other social media) - with planning, scheduling, monitoring, re-use and so on. It has a very sensible price - and also, excellent support. Pipedrive is a new tool for me in 2023. It's marketed as 'Sales CRM & Pipeline Management Software'. I'm still learning it, only using a fraction of its capabilities, but it has already helped bring a lot of discipline and strategic thinking to my 'work pipeline management' habits. It's a fairly simple (but functional and elegant) tool. Worth investigating if you think your discipline or strategy around work 'leads' could be improved. To encourage new (or old) lawyers who feel daunted by business development - just break things down into practical chunks, and start doing something. It will get easier (though perhaps never easy) with practice.
-
-
Who doesn’t like a party? We tried to do the first CL 🌲 in style.
We enjoyed our inaugural firm Christmas Party on Friday night at Aviary Terrace Bar then Bos Restaurant - it’s been a challenging but excellent first year, so thanks to Mitchell A., Blake Palmer, Glenda Robertson and other contributors. https://lnkd.in/gsQhsMb5
-
-
I’m pretty terrible at following most of the suggestions in this article. It’s full of wise and valid points, so I recommend it to you! One of the trickiest things to manage when you’re busy is to keep the quality high and consistent for clients. Scheduling rest time so you can retain perspective and creativity is very important for that. I’m determined to be more disciplined about that from now on 🤞🏼- wish me luck!
The typical response to an overwhelming workload is to put in longer hours. Don't do that.
Director, Mortgage & Finance Broker for Education, Religious & Not-for-Profit Sectors
1yEnjoying these series posts, Stephen! I am one of the strange non-lawyer individuals who likes to read through the T&C's of contracts and have regularly raised my eyebrow at many of them... good to know these things!