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Archive for October, 2011

Help! My masseuse has turned into a man!

Wednesday, October 26th, 2011

Not so long ago, my husband gave me a voucher for any treatment I fancied from my favourite salon. Not ever having had one, I boldly booked the “full body massage”. Head to toe treatment with oils and all the trimmings. After all I had been working pretty hard and thought I deserved it. SO with great anticipation I turned up at the salon.

Imagine my horror when the receptionist announced quite casually that there had been a slight change of plan and my massage was now with Mario. I double checked whether she hadn’t meant Maria? No, it was definitely Mario who, I was assured, was excellent and very good with his hands…!

I didn’t have the heart to protest and allowed myself to be led along the dim, candle lit corridor, incense wafting seductively in the air to a cosy little room with more candles, a bed ready laid with fluffy towels for the impending massage. Very matter of fact, I was told to take off all my clothes, slip on the robe and Mario would be along shortly! As I proceeded to do so, I felt like Bridget Jones, fretting about what knickers I was wearing and oh my god, had I shaved my legs..?? I found myself breaking out in a cold sweat and felt anything but relaxed! I duly stripped off, donned the robe and sat almost formally as if for a job interview in a wicker chair in the corner. I fairly jumped out of my skin when Mario knocked at the door and enquired if I was ready? “Ye-yes”, I answered trying to sound ultra-cool about the whole thing and in he came.

Now I have to laugh at my stupidity because he was the perfect gentleman and there was nothing in the slightest bit dodgy. The massage went very well. Putting my legal hat ( or should I say clothes) on, I told myself that this is precisely the sort of thing I provide for in my contracts for service providers –not full body massages- but the right to provide a service in a slightly different way.. This occurs in the clause that describes exactly what service will be provided by when etc. If I am acting for the service provider, this is often deliberately phrased in somewhat fluid terms allowing the service provider a little leeway should any unforeseen circumstances arise. If acting for the customer on the other hand, the service provider is pinned to the wall with the exact detail of the service being provided, along with time lines and miles stones.

Applying this rule to my salon, if I had been acting for them I would have stated that service being provided is a full body massage of one hour. Full stop! If on the other hand I was acting for customers, I would have drafted the contract to state that the service was a full body massage of one hour provided by a qualified female masseuse, with soft hands, short finger nails, no body piercing ….You get the idea! So next time you book an appointment, check the service description!

Handy Checklist- Transportation

Friday, October 21st, 2011
  • Your customers will judge the quality of your firm by your delivery service, as well as the intrinsic value of your products or services.
  • If you are supplying goods over a wide area, perhaps nationally, contractor services will probably offer the most efficient delivery.
  • Incorporate in your standard terms and conditions those of your contractor relating to acceptance and delivery that limit their liability.

Off to see my lawyer can help you draft your Terms & Conditions in accordance with your requirements, within the confines of the law.  For such advice, please contact Joanna Tall at jo@offtoseemylawyer.com.

  • Monitor your contractor’s service by regular inspection of its delivery records, and carry out periodic customer surveys.
  • Run your own vehicle(s) where your distribution pattern is concentrated or the success of your business relies on installation and repair services.
  • Review the alternative merits of contract hire, finance leasing and contract purchase, in terms of taxation, depreciation charges and capital allowances, against the advantages and disadvantages or outright purchase.

Off to see my lawyer can advise you on basic taxation issues, and where necessary refer you to a specialist tax lawyer whose services we recommend.

  • For more than a handful of vehicles, consider outsourcing fleet management services to a specialist firm.
  • The successful outcome of fleet purchase or a financial lease depends on maximising residual values on disposal.  If residual value estimates prove optimistic, you may need to dispose of a vehicle before its due date to avoid later loss, or to retain it until it is more fully depreciated or maintenance costs become excessive.
  • Both the trade-in and auction routes involve selling the vehicles ‘as seen’ and avoid potential liability towards a subsequent owner.
  • Factory extras increase initial vehicle cost and monthly payments to hire companies; they also depreciate quickly and may not add to residual value.  Hire and financing contractors may insist that accessories remain in place on return and restrict respraying or fitting of advertising decals.

Checklist Source: Start Up & Run Your Own Business: The Essential Guide to Planning, Funding & Growing your New Enterprise by Jonathan Reuvid (Kogan Page; 8th edition 2011)

Handy Checklist- Premises & Business Assets

Friday, October 14th, 2011
  • Do you need separate premises?
  • If not, can you work from home effectively?
  • If working from home:

-   Do you need a separate phone line, broadband internet access, etc?

-   Do you need planning permission?

-   Do you know whether there are any capital gains tax implications of working from your home?  Off to see my lawyer can advise you on basic taxation issues, and where necessary refer you to a specialist tax lawyer whose services we recommend.

-   Have you discussed implications with other householders?

-   Have you considered whether you will feel isolated?

-   Do you have other home-workers to discuss work issues with?

  • If seeking premises:

-   How much space do you need?

-   Does this allow for all your equipment dimensions?

-   Does this allow you room for growth?

-   Do you require any planning permission?

-   Is location important to you and your customers?

  • Purchase or lease: remember that purchasing your premises is essentially a separate business proposition.
  • Lease contract:

-   Get professional advice.

-   Negotiate your terms: at the outset you have your best chance to get the lease you want.

-   Ask about rent-free periods, break clauses, assignment rights, and rent-review terms.

-   Make sure you understand the fundamentals: what upkeep and charges you are responsible for; who pays the insurance; and what your arbitration rights are.

  • Asset financing: familiarise yourself with all the options, such as:

-   contract hire;

-   finance leasing;

-   lease purchase;

-   hire purchase;

-   personal contract purchase.

  • Insurance: double-check you have all your legal obligations in place:

-   public liability;

-   product liability;

-   employer’s liability.

  • Think through your other insurance risks:

-   building and plant;

-   stock;

-   professional indemnity;

-   key staff cover;

-   business interruption;

-   credit insurance;

-   transit insurance and so on.

  • Risk mitigation: have you thought through a crisis management plan?

Please note that while we at Off to see my lawyer specialise in providing business law advice, we are trained in elementary property law.  And for any property-related issues beyond our level of expertise, we can refer you to a recommended property solicitor.

Checklist Source: Start Up & Run Your Own Business: The Essential Guide to Planning, Funding & Growing your New Enterprise by Jonathan Reuvid (Kogan Page; 8th edition 2011)

Lawyer found with tagged (stolen?) shirt

Friday, October 7th, 2011

Something happened to me recently which was both really annoying and embarrassing at the same time, but now in retrospect is actually quite funny. It reminded me also why we lawyers do have to draft contracts assuming the worst or most unthinkable scenario – because it does occasionally happen!

I was attending an important event with a small group of colleagues and came up with the bright idea that we should all wear the same blouses and really create a team look and stand out. Needless to say, I had left their purchase until the last minute and just threw the bag of brand new blouses in with all the other gear I needed, not bothering to unpack them until minutes before the show opened. Imagine my horror when I pulled mine out of its package only to find it had its security tag still firmly attached! A nice clumpy bit of plastic right in the centre of my back and no way of removing it! I had visions of people looking at me suspiciously and thinking: “that lawyer is wearing stolen goods!” and me trying to explain the real scenario. My colleagues thought it was hilarious! Luckily, I have long hair and was able to hide the offending tag.I felt very uncomfortable nevertheless.

Luckily there weren't two of them!

Next time you give your lawyer grief for going over the top with clauses in a contract that deal with the ‘what if’s…’, think of me and my tag!

Handy Checklist- Purchasing Guidelines

Friday, October 7th, 2011
  • Understand the distinction between procurement and purchasing.  As the business grows, set guidelines and delegate clerical purchasing duties, but retain the decision-making procurement role for some time.
  • Aside from employment law, contract law and tort are the only two aspects of civil law that will concern you most of the time in running your business.

Off to see my lawyer can help you draft bespoke contracts, or you may prefer to purchase one of our generic templates from our “Oven Ready Document Shop” at www.offtoseemylawyer.com.

  • Your supplier is in breach of contract if it fails to supply the product or service you have ordered to specification and within the agreed delivery time.  Contracts between purchasers and suppliers can be verbal or embodied in a formal legal agreement.  In practice, the parties commonly rely on their standard conditions of purchase and sale.

Again, Off to see my lawyer can help you draft bespoke Terms & Conditions, or you may prefer to purchase one of our generic templates from our “Oven Ready Document Shop” at www.offtoseemylawyer.com.

  • Negligence is the most common form of tort in business.  Employers’ third-party personal accident liability insurance may be nullified by negligence.
  • The necessary elements for a contract to be in force are: an offer of goods or service; acceptance by the purchaser; consideration (payment) in exchange for the goods or service.  Among the implied conditions, ‘suitable quality’ and ‘fitness for use’ represent the most common causes for dispute.

Off to see my lawyer can help you avoid future litigation by drawing your attention to relevant law on various issues such as the quality of goods, and the legal requirement for goods and services to match up to their advertised description.  For such advice, please contact Joanna Tall at jo@offtoseemylawyer.com.

  • Whenever possible, make sure that you are buying on your terms.  The terms on your official order will prevail unless the seller sends an acknowledgement on which its terms are specified.  The rule is that the last one wins.
  • To ensure that you do not have to pay for defective products, follow the supplier’s procedures for complaint, and return goods within specified time limits.

If you suspect that your supplier’s rules and/or procedures contravene any laws, our lawyers at Off to see my lawyer can review these for you.  For such advice, please contact Joanna Tall at jo@offtoseemylawyer.com.

  • Select and purchase capital expenditure items by reference to fitness for purpose, the effects on your cash flow and net profit, and competitors’ practice.
  • Purchasing consumables on the web probably wastes more time than the value gained in keener prices, but web prices may help you to ensure matching offers from local suppliers.
  • When selecting and engaging professional advisers, pay attention to compatibility as well as technical expertise and experience.  Any excuse or attempt to avoid giving references should be treated as a disqualification.
  • Before choosing your advisers, make sure that they will help you to carry out their recommendations or transfer skills to members of your staff.  Do not agree extensions to the contract until the original assignment is completed to your satisfaction.
  • As the business expands, draw up a set of purchasing rules that everyone in your organisation, including yourself, must observe.

Off to see my lawyer can help you customise your Terms & Conditions in accordance with your requirements, within the confines of the law.  For such advice, please contact Joanna Tall at jo@offtoseemylawyer.com.

Checklist Source: Start Up & Run Your Own Business: The Essential Guide to Planning, Funding & Growing your New Enterprise by Jonathan Reuvid (Kogan Page; 8th edition 2011)

How the sun stole my thunder!

Tuesday, October 4th, 2011

It is not often that good weather puts a spanner in the works! This weekend however it did. Humf. I had decided at short notice to take a stand at a big exhibition over 150 miles away which promised to have a big audience of entrepreneurs. Thousands possibly. Perfect. I worked away into the night getting my leaflets ready, all of the paraphernalia for the stand, hotel rooms for the night before, booked staff to help on the day, the works.Good weather and force majeure

Then came the dreaded weather forecast compounded by headline news in all the papers: “Heat wave this weekend!” and “Head for the beaches!” As soon as I saw them I knew we were doomed. Sure enough, people did head for the beaches rather than come to the exhibition and I don’t blame them. Sniff.

Putting my legal (sun!) hat on, it did lead me to think about the interesting topic of ‘force majeure’ –this is when someone can get out of their obligations under a contract because of something that is beyond their control. Examples of this would be the ash cloud which stopped all flights and interrupted business; another would be if a bolt of lightening hits your factory and you are unable to deliver. Usually we lawyers like to include as many examples as possible in the ‘force majeure’ clause just to be on the safe side. These are usually quite negative events like storms, terrorist attacks, strikes, lock-outs etc. However, I have never seen ‘exceptionally good weather’ included! Technically I was promised a crowd, but the crowd never showed up… maybe organisers of exhibitions and major events should cover themselves for rain or shine?

I would be interested to know of any other events you have come across beyond your control, especially good ones!