“Do you remember back in March, when practically every other unsolicited email was offering access to supplies of face masks?” writes David Little, a Partner in our Corporate & Commercial team.
Not surprisingly, since the Covid-19 pandemic is still very much with us, it is now mandatory to wear a face mask in public places. Indeed, it is now compulsory in 120 countries. And where do the supplies of the required face masks originate? Frequently from China, and possibly in financial jurisdictions where the normal rules of contract law are loosely enforced.
So, what can you do, if like many businesses you were swept up in the need to buy face masks for your employees, and are still waiting for delivery? Or possibly worse, ordered boxes of masks which are patently unusable?
The first thing our Commercial team would aim to establish is, whether on the balance of the exchanges between you and your supplier, a legally enforceable contract was established between you and the seller.
Once we have established the existence of a contract, we would investigate whether there was a breach of the terms of the contract, for instance, that the masks were supplied with elasticated loops, and next, whether there was any additional party, a shipping agent for example, against whom the breach of contract might apply.
Alternative Dispute Resolution
Perhaps, counter intuitively for a solicitor, our next recommendation would not be to take them to court and prepare a case.
Depending on the jurisdiction of where the contract originated, Alternative Dispute Resolution might be a more appropriate course of action to achieving a satisfactory resolution for all parties.
If you have been the victim of a scam, and recovery of your money seems unlikely, reporting the transaction to the police would make subsequent proceedings a Criminal case.
A Civil action to recover monies paid, or to wind up the company if they no longer have the monies, would be an option. But this would be equally drastic, time consuming, and expensive.
Litigation has the potential to be expensive and would need to be weighed up against the potential sums aiming to be recovered. Submitting to a mutually agreed mediator would make the most sense in cases such as this, in general. Whilst a mediator does not have any legal powers to enforce a settlement, in my experience using a third party in this way is generally a good way forward out of a difficult situation.
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If you would like to discuss any of these matters further, please email me at firstname.lastname@example.org, or call me, on +44 (0)20 7079 4143.
About David Little
David is a Partner in the Corporate & Commercial team, a business lawyer, focusing on transactional work, especially acquisitions and disposals of businesses. He also has a corporate finance practice, focusing on smaller cap listings and fundraisings on the Standard List, AIM and NEX.
He is well able to understand matters from the client perspective, having spent time working in industry as group legal counsel and company secretary for an AIM-listed financial services business, and having also served on the Board as a non-executive director for an AIM-listed financial training company.
His clients value his commercial experience and his common-sense approach to transactions and company law matters, and he is viewed as pragmatic, focused and always accessible.
Mergers & Acquisitions
Equity Capital Markets
Sports Marketing and Governance
Retail & Leisure
Restaurants, Bars & Catering
The above is accurate as at 22nd October 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.