The LSB recommendations come after criticism from the legal ombudsman which in turn led to an investigation by the Legal Services Consumer Panel.  In July 2011 the legal ombudsman called on the government to act to protect consumers against unregulated firms working in will writing, saying 13% of cases brought to him involved problems in this area. The Panel discovered that the levels of problems may in fact be even higher than that.  One in five Wills now drawn up had problems, particularly those drawn up by legally unqualified practitioners, though some solicitors were also not exempt from criticism either. In one notable case a specialist will-writing firm offering to store documents in Somerset House in London, was actually found to be storing them in a barn in Somerset.
Chris Kenny, chief executive of the LSB, said some customers were using will writing services which were “just plain rubbish.” These companies were even getting the basics, like names and amounts, wrong:

“In some cases it’s just one more thing for grieving relatives to sort out, but in others it is done so badly that the will wouldn’t be operative and relatives would have to go through a lengthy legal process to sort things out.”

Other customers had used estate administration companies who had taken some of the money they were meant to be managing. Kenny said the LSB proposals were designed to protect consumers and the industry by getting rid of companies that give all firms a bad reputation. He said the board had looked at the Law Society’s suggestion that only solicitors be allowed to offer these services, but decided on balance that that would be bad for consumers.

The LSB will need to formally recommend to the Lord Chancellor after the consultation period ends, and Kenny said regulation of the industry could be 18 months to two years away. But he said consumers should not wait until then to sort out their affairs:

“The message we are very keen to put across is that you shouldn’t let the problems there are in the market put you off making a will. We are not in the business of scaring people.”
Kenny said anyone about to get a will written should look for a firm that is a member of a professional body, and ask how long the company has been operating, whether will writing is a core part of their business, and what protection is in place should there be a complaint or the company go bankrupt.

The LSB is also consulting on what other forms of legal advice should be regulated. Currently, advice for unfair dismissal and family cases can be given by people who are not legally trained, and Kenny said these were among the areas being looked at.

Our recognised specialist lawyers act for clients ranging from individuals through to larger public companies and organisations.  We have provided advice to hundreds of business owners and commercial landlords over the years, and, as part of providing the complete service, we are able to consult colleagues and draw on our own in-house experience in other areas such as, company buy outs, commercial litigation and taxation.

Jones Gough’s commercial property lawyers offer a professional and cost-effective service on a wide range of commercial property matters. We are experienced across the full range of property types: business premises, shop leases, office leases, restaurant leases, investment and industrial properties, pub leases, clubs and hotels. Our aim is to satisfy each of our client’s objectives as quickly as practical, as a faster transaction will result in greater cost-savings for our clients.

Our areas of commercial expertise

• Freehold business premises sale/purchase/re-mortgage.
• Drafting/negotiating/advising on transfers (assignments) of existing leases.
• Drafting/negotiating short term lease/licence arrangements.
• Commercial property work related to the sale of a business
• Advice on commercial mortgages
• Deal negotiation and projects
• Finance and security
• Development and planning issues
• Extensions/renewals of existing leases
• Negotiating/advising on termination of leases (lease surrender)
• Possession proceedings
• Advice and negotiation on rent reviews
• Advising on dilapidation issues and litigation
• Service charge issues

To find out more information on how the Jones Gough LLP Solicitors commercial conveyancing team can help your business, call us now on 0161 751 6458, or fill in the online enquiry form. Your enquiry will be treated in strict confidence and sent to the most appropriate legal expert, who will contact you within this period to discuss the matter with you. We will provide an initial interview, free of charge and with no obligation.

What is a breach of contract, and what are the most common breaches?

A breach of contract essentially means that one or more of the terms and conditions laid out in a contract has been broken. Breaching a contract may lead to the contract breaking down completely and can easily lead to legal action and claims for damages in a law court. Most contracts are formed when an agreement is made between two or more parties to carry out a service in return for payment for that service.

If one of the parties fails to carry out their side of the agreement, then that party can be said to be in breach of contract. Breach of contract can also occur if any work carried out is defective, or if one party makes the other aware that they will not be carrying out the agreed work. Breaches of contract can also include non-payment for a service or not paying on time, failure to deliver services or goods, and being late with services without a reasonable excuse. Terms and conditions are a fundamental part of a legally binding contract and any broken terms can lead to breach of contract.

Types of Breach of Contract

The main types of breach of contract will be minor, material, fundamental, and anticipatory. Minor breaches could, for example, be a builder who substitutes his own type of materials for specified materials. The substituted materials may work just as well as those specified, but technically this can still be construed to be a minor breach of contract. A material breach will generally be a breach that will have serious consequences on the outcome of the contract. A fundamental breach would be one so serious that the contract has to be terminated. An anticipatory breach is one where one of the parties makes it known that they will not be carrying out all of the agreed work, and the consequences can be termination of the contract and damages being sought in court.

Damages for breach of contract

Damages can be awarded to an innocent party if a law court upholds that a contract has been breached. Damages will be used to compensate the innocent party for their loss caused by the breach. These damages are usually a remuneration that will reflect the loss. For example, if an employer dismisses an employee unfairly, then the employee could claim damages for loss of earnings under breach of contract. Damages can even be awarded when there has been no actual loss, though the innocent party will generally only be awarded nominal damages.

Proof of breach

If a dispute does occur due to breach of contract then the judge will need to decide that a legally binding contract exists, and that it has been breached. In some cases the contract may only be a verbal contract and there may be no actual written evidence that a contract was formed. However, in such cases a judge will need to study the terms and conditions of the contract in detail, and then clarify what actually was agreed in practice.

Damages due to Breach of Contract

An entitlement to damages may be awarded if the innocent party can prove that a breach of contract took place. The innocent party must firstly prove that there was a loss due to the breach, and then prove that the nature of the loss would lead to compensation. Remoteness of loss will also be taken into consideration by the courts and may include future loss that could reasonably occur from the contract being broken.

Other losses can include loss of profits, the cost of rectifying the breach and wasted expenditure. If disputes do end up in the law courts then the amount awarded may depend on how much documented proof the claimant has regarding financial loss. This can include actual records and document proof of financial loss due to the breach. However, if there is little proof, damages can still be awarded: the judge will ascertain all of the facts of the case from the evidence presented.

Breaching a contract can be a serious offence and is one of the most common offences to come before the courts. Anyone considering court action for breach of contract should seek expert legal advice before proceeding. Court disputes are a lengthy and costly procedure and the legal costs should be weighed up against the likely damages awarded.

The Elements of a Contract

For any contract to be considered legally binding there must be clear evidence that the elements of offer and acceptance exist. Any contract or agreement will begin an offer. If this offer is then unconditionally accepted, then a contract will be formed. However, there are other essential contract elements that the law requires. If any of these elements are not present, then the court may decide that no legally binding contract has been created

The Offer and Acceptance

When an offer is made, there must be a willingness from the accepting party to enter into the contract. In order to make the contract complete and binding, there must also be specific terms and conditions set out and accepted by all the relevant parties. It’s only once all the terms and conditions have been offered and accepted and no further negotiations are intended, that the contract can said to be complete or full.

Consideration

Another important element in the law of contracts is consideration. A contract may not be deemed to be legally enforceable if there was no consideration included. This means that there must be mutual consideration on either side; one person promises to provide a service and the other pays in return.

Intention

Another essential element in a contract is intention. When parties make an agreement with no intention of the agreement becoming legally binding, then it will not be judged to be a contract in the eyes of the law. However, in some cases, such as commercial contracts, there is an assumption that the contract is intended to be legally binding, even if this is not stated categorically. Generally though, there must be an intention to create a binding contract. If one of the parties does want to bring the matter before the courts, and argues that there was never any intention of a binding contract, then they will need to provide clear written evidence to support this contention.

The Terms and Conditions

If a Contract Dispute is brought to law, then the courts will look in detail at the terms and conditions of the contract. A contract cannot be said to be complete if the terms and conditions are not fully generally be held to be legally binding if the terms and conditions are unclear.  However, every court case is different, and a judge may at times try to clarify the terms and conditions of the disputed contract, rather than simply deciding the contract has been broken.

Type of Contract

In most cases it is more sensible to take all the necessary precautions, and to formalise all agreements with a written contract. But a contract may be upheld even if it has been made verbally. There are certain circumstances where contracts must be made in writing, such as the sale of property or tenancy agreements. However, if no written contract or statement exists, and the contract dispute has reached the courts, then the judge may look at how services, promises, and exchanges were carried out in practice in order to reach a decision.

Contract Discharge

A contract can come to end in one of four ways; breach, performance, agreement or frustration. Discharge by performance means that all the obligations of the contract have been accomplished by both parties. Agreement of discharge can mean that both parties agree to end the contract, or one party releases the other party from the agreement. Frustration means that events have occurred that made the completion of the contract impossible and the obligations of the contract could not be met.

Breaching a Contract

A breach of contract will occur if one party does not fulfil one or more of the specified terms and conditions. It can also occur if the work carried out is defective, or if one party makes the other aware that they will not be carrying out the agreed work. The law can then be brought to judge on that particular contract dispute and can award the innocent part damages.

The law of contracts can be a complicated matter, and serious consideration should be given along with expert legal advice from a solicitor if the court process is to be considered. Financial damages may only be awarded if the innocent party can prove financial loss. Court costs and solicitors fees should be weighed up against the likelihood of any damages awarded before proceeding with court cases.

The majority of tenants, when reminded about a missed payment, will respond quickly and remedy the situation. With others, it may be possible to negotiate an acceptable compromise. However, there will always be some tenants who are simply unwilling or unable to continue to make rent payments. In this event, proper landlord advice is to seek possession of the property, in order to avoid large losses. It can take a considerable amount of time to regain possession through the courts – often three to six months. It is imperative therefore, that if a landlord decides to pursue an action for possession of the property, they must act quickly. Under the Housing Act 1988, there are two routes a landlord can follow to evict a tenant

Section 8 possession notices

Where the tenant is in the early stages of his or her tenancy term and there is no wish to delay the eviction process, then landlords are generally advised to submit a possession claim following the Section 8 notice. The landlord must first submit a possession claim then attend a hearing to obtain an eviction order. It is recommended that a solicitor attends the hearing with the landlord to present the case to the judge and answer any legal questions that the judge may raise.

The section 8 process involves claiming for possession under one of the seventeen grounds set out in the 1988 Housing Act. Some of these grounds are ‘mandatory’ – and f they can be proven then the judge will automatically grant a possession order. Ground 8 gives mandatory possession where the tenant is a full two months in arrears with rent both at the time of serving the notice and at the actual court hearing. There are other discretionary grounds that can be invoked, but the outcome of these is less certain.

In terms of a claim for the rent arrears, landlords are best advised to serve a valid section 8 notice on the tenant. The two week notice period specified in the notice must have expired, before a normal possession procedure can be brought before the courts. The judge will then set down a date for a hearing, at which the landlord will need to attend and give evidence. If the claim is successful, the landlord will get an order for possession, an order that his or her tenant pays certain legal costs and a money judgment for rent arrears due at the date of the court hearing.

Section 21 possession notices or accelerated possession orders

When a tenant is nearing the end of his or her tenancy term, the best advice for a landlord is to obtain an accelerated possession order. An accelerated possession order is made by a district judge based on the possession claim and associated evidence; there is no hearing. An accelerated possession order is for repossession of property only and cannot include a claim for the rent arrears. Landlords will need to bring a separate action to recover any arrears once they have obtained possession, utilising the Small Claims Procedure.

In terms of procedure, a valid form of section 21 notice must be served on the tenant, and the notice period of two months specified in this notice must have expired. Landlords can then fill out the special accelerated possession procedure forms, sending copies of all relevant documentation to the court. If the application is successful, the landlord will get an accelerated possession order and an order that the tenant pays part other legal costs, although in practice recovery of these legal costs from the tenant is difficult if the deposit has been used to cover unpaid rent.

Landlord Advice – Which Route to Follow?

Any landlord making the choice between the two possession procedures should always consider the following points:

• If the paperwork is correct, a problem tenant is unable to prevent you evicting them under the accelerated possession route
• Landlords cannot however use the s21 route to claim rent and obtain a debt order against the tenant.
• Landlords will not be able to obtain a possession order through the section 8 route rent arrears ground if the rent arrears are paid (for instance by Housing Benefit) before the hearing date itself. This may be acceptable if you simply want the money, but unacceptable if you actually want the problem tenant evicted.
• If getting possession is more important to you than being paid the rent, landlords may favour following the section 21 route and wait for the longer notice period to expire, as this guarantees that they will obtain a possession order.
• This will also be the preferable course of action if there is a possibility that the tenant will raise a defence and counterclaim to the section 8 route, on the basis that the property is in poor repair.
• Landlords will have to use the section 8 route if the tenant is not paying rent, and the tenancy still has several months or longer to run, as they cannot evict under the section 21 route during a fixed term.

The principle function of probate is to transfer the title of the decedent’s property to the heirs and/or beneficiaries. Generally probate would not normally be needed if there is no property to transfer. However another equally important function of probate is the collection of any taxes due because of the deceased’s death or the transfer of property. The probate process also provides mechanisms for payment of outstanding estate debts and taxes, for setting a deadline for creditors to file claims to ensure that the heirs or beneficiaries will not be hounded by unpaid creditors indefinitely, and for the distribution of the remainder of the estate to the rightful heirs.

Generally probate is necessary before the deceased’s property can be legally distributed. In the case of smaller estates, a less formal procedure is followed, yet this is still under the supervision of the probate court. Even when there is a valid will, a court still needs to allow others to object to the will, and if there are objections, to determine if the will is valid. This legal process will eliminate any possibility that:

• The will was the result of fraud, mistake or “undue influence.”
• The will was made at a time when the deceased was not mentally competent to make a will.
• There was a later will which, if valid, would replace the older will.
• The will was not properly executed.
• The ‘so-called’ will is a forgery.
• The will is not fully valid for some other reason, such as a pre-existing contract.
• Other claims against the deceased’s estate impact what the beneficiaries under the will would be likely to receive.

If the decedent owned property in his or her own name for example, no knowledgeable third party would accept title to the property, nor would any bank would approve a mortgage, unless the estate went through probate so “clear title” could be given the new buyer. Similarly, few third parties would enter into any other transactions involving the decedent’s property before the will is admitted to probate and/or someone is lawfully appointed to act for the estate.

The probate process in essence clarifies a will and protects an estate from challenges to the specified beneficiaries of inheritance. Although using probate for a will is an effective and necessary process, some matters of a will can be handled without involving a probate court. Much will depend on the nature and shared ownership of the property in the estate. Probate can be a tricky legal area, and generally the best advice would be to consult with a qualified solicitor with specialist knowledge of probate and estate planning law.  

Why use a solicitor to pursue a claim for clinical negligence?

It is vitally important for any patient who has suffered or been affected by procedures where medical negligence is suspected, to take expert advice from a qualified solicitor with specialist knowledge of the sector.  Clinical negligence claims can be extremely complicated, and are usually vigorously contested. Expert knowledge is needed before any case is pursued. It is also very important to contact the solicitor as soon as possible, as there are strict time limits for making complaints, occasionally as little as 13 weeks. Legal action must be taken within three years of the date the patient first knew, or could reasonably have been expected to know, that they have suffered an injury directly caused by someone else’s fault or omission. In special cases, the court has discretion to allow certain cases to be pursued outside of these time limits out of time.  For example, in cases where there have been injuries to children, proceedings only need to be commenced before the 21st birthday.  Similarly there are no time limits for cases where the plaintiff is mentally incapable.

Jones Gough’s specialist Personal Injury lawyers will always advise that our clients should talk to their medical practitioner before starting any legal action. There may be a genuine misunderstanding, or simply a problem with communication, and it is better to try to resolve the matter at this stage than pursue unnecessary legal action. However, if this fails then our clients will have to make a more formal complaint. To complain about a GP you must write to the Practice Manager and to complain about a hospital you must write to the Complaints Manager. Making a complaint is useful if your concerns are about procedures or behaviour that you want put right, or you want an apology for the way you have been treated.

Pursuing a claim for medical negligence

If you have been injured as a result of negligent medical treatment you may be entitled to make a claim for compensation. However, it needs to be re-emphasised that as clinical negligence cases are generally fiercely defended, it is advisable to engage a specialist lawyer to act on your behalf.   There are a number of elements to establishing that medical treatment was negligent.   The patient has to prove (on “the balance of probabilities”) that the clinical practitioner has been negligent: in other words they will have to demonstrate that the standard of care fell below what could “reasonably have been expected’. However, medical opinion and practice can often differ over the appropriate treatment for a particular ailment or illness. It is a valid defence if it can be shown that the treatment accorded with the views of a responsible body of medical opinion. Even if it can be can shown that the standard of care was in fact negligent, clients pursuing a claim will still have to prove that it was the negligence that actually caused the injury. This is often the hardest part to prove, and this is why it’s vital to have a solicitor with specialised knowledge acting on the client’s behalf. The medical practitioner may claim that the injury arose from the illness itself and not from the treatment; or that the injury would have come about in any event. Detailed medical evidence will be called with specialists arguing for each side. Clinical negligence is a highly specialised area of law, so it is important that your solicitor is experienced in this field. The clinical practitioner or authority will be defended by experts and therefore clients must receive equal specialist advice. 

Every party to a contract should be aware of trading laws and aspects of law that might affect them, whether they’re buying or selling.  There are certain fundamental issues that need to be borne in mind when entering into a legally binding relationship with another party. For instance the seller is likely to be held liable for death, injury or loss to property caused by defective products or services. This might well include design, manufacture and marketing defects: so, it’s important to understand that everyone involved in the supply chain, be they retailer or manufacturer can potentially be liable.

What fundamental concerns need to be addressed by parties to binding contracts?

• It is absolutely essential to always have third party liability insurance.
• All products must comply with the current safety regulations.
• False descriptions are illegal.
• It is also illegal to give misleading prices: you can’t display goods at a low price and then charge more, or claim to offer a sale price or a discount if the price has not genuinely been reduced.
• A person may need a licence for certain types of business, for example businesses which offer credit, other than trade credit.
• Some businesses are subject to extra regulation, like those selling financial services, food or goods online. If you are involved in any of these sectors, then you should be aware that the Consumer Protection (Distance Selling) Regulations 2000 place extra restrictions on telephone sales and give online buyers some extra rights.
• It’s also vitally important to remember that if your business keeps information about individuals, including staff, on computers, you will probably need to notify the Information Commissioner. The Data Protection Act applies to all personal records – not just those on computer, and there are also special rules for any personal records held on the internet. Even if you only record basic information, such as names and addresses, you may still need to notify the commissioner, although there are exceptions to the rule.

The unfair Contract Terms Act, 1977

Transactions between businesses are covered by the Unfair Contract Terms Act 1977 (UCTA). In general the principle applies which states that businesses are free to enter into whatever contracts they agree between themselves. Obviously it’s incumbent on the buyer to make sure they’re happy with the contracts he or she agrees with other selling businesses. However the Unfair Contract Terms Act places a number of restrictions on the contract terms businesses can agree to. Specifically, it lays down rules for the ways in which vendor businesses can use exclusion clauses to limit liability in certain areas:

• Excluding liability for death or injury is not permitted in any circumstances.
• Excluding liability for losses caused by negligence is permitted only if it is reasonable.
• Excluding liability for defective or poor-quality goods is also permitted only it if is reasonable. Although ‘reasonable’ is not defined precisely , courts will take into account the information available to both parties when the contract was drawn up; whether the contract was in standard form, or negotiated, and whether the purchaser had the bargaining power to negotiated better terms.

What you can do about breach of contract?

Although there are certain rights that can be excluded from business contracts which cannot be excluded from consumer ones, that doesn’t mean to say a business cannot challenge something it sees as restrictive or unfair. For example if a business is being supplied with defective goods, this may not in fact may not technically be a breach of contract if an exclusion term limiting your supplier’s liability in this area has been included, but the business might still be able to challenge the exclusion clause on the grounds that it was unreasonable under the Unfair Contract Terms Act 1977.

If a supplier’s liability is not limited by reasonable exclusion clauses, and the goods are not fit for purpose are of unsatisfactory quality or don’t match the seller’s description, then businesses may be entitled under the Sale of Goods Act to reject them within a reasonable time after delivery and to recover any money they may have paid.

If a business has paid for services which have not been carried out with the reasonable skill expected, it is entitled to ask for the work to be re-done at no extra cost. If the supplier won’t do this, the business is entitled to ask another supplier to put the work right and then reclaim the cost from the original supplier. If a business agrees a price as part of a contract, it is not obliged to pay any more. If deadlines have been agreed and not met, the buyer would be entitled to compensation for any foreseeable losses he or she may have suffered.

Any business which faces problems negotiating or enforcing a contract, should always contact a solicitor for expert professional advice.

Contracts from a buyer’s point of view

It should always be borne in mind that businesses do not have the same legal protection as individual consumers. In general, when any business purchases goods or services from another business, it should have the same implied rights as a consumer would when buying from the business. However, although basic rights can’t be excluded from contracts with consumers, they can surprisingly be excluded from contracts between businesses. A consumer contract which excluded liability for defective goods would be automatically invalid. But there is an onus on the business purchaser to you to check in advance what terms and conditions they are agreeing to. Businesses should always be clear about the following points:

• They should check whether there are any terms or conditions in the contract that appear to be too heavily weighted in favour of the business supplying the goods or services.
•  Look out for exclusion clauses which the seller might use to exclude certain liabilities from the contract.
• If any business is unhappy with any of the terms or conditions, they should not agree to them, but get them checked by a solicitor or contact their local Trading Standards office.
• Business buyers can take the initiative when negotiating contracts with your suppliers, and have certain terms and conditions amended or added to improve their position. Naturally this will depend on the buyer’s bargaining power and the amount of business they are agreeing to.
• Business buyers should use a solicitor to draw up standard terms of trade for key purchases of goods and services which they can enclose with the order to make sure it is agreed that your terms will apply; of course the seller must also agree to this too.
• The final contract should reflect what has been agreed in terms of quality, quantity, price, payment terms and delivery schedule.
• Buyers should insist on the removal of exclusion clauses limiting the seller’s liability for defective goods or for losses due to negligence.
• They should also make sure the goods correspond with the seller’s description, are of satisfactory quality – safe, in working order and free of defects and are fit for purpose.

All these rights are outlined in the Sale of Goods Act 1970. Similar implied contractual rights also apply when purchasing services. If one business purchases services from another business, the service should be carried out with reasonable care and skill, within a reasonable time and for a reasonable charge. These implied rights apply not just purchases, but also to hiring, hire purchase and part exchange. Sole traders, and those within a partnership or as an unincorporated association, are also protected by the Consumer Credit Act 1974, under which they are counted as an “individual”. However, the Consumer Credit Act does not extend to limited companies or LLPs.

How can businesses be sure they are effectively protecting their interests?

The easiest way of ensuring that your interests as a buyer are protected is by using the services of a qualified solicitor. A solicitor will ask all the relevant questions and will ensure that:

• When your business is buying goods or services, they will protect your rights under the implied terms. They can do this by asking for detailed product specifications. Even if the business knows a lot about the product, it is always better to make sure it asks lots of questions
• When the order is placed, they will insist that the product must match the specification and state explicitly the quality levels and standards expected. Businesses should make sure they tell the seller what they will use the product for, and make sure they keep a record of claims by the seller. This can be done with brochures from the seller, and confirmation emails answering specific questions.
• When you get the product finally arrives it should be inspected thoroughly. No business should accept a product without a detailed inspection, as they may lose their right to reject it if a defect is found later.
• A business has a choice to make. They can either choose to examine the product thoroughly, or not at all. Either method can be sufficient to protect a business’ legal rights. Businesses should never sign a delivery note acknowledging the goods were satisfactory, until they have been examined thoroughly.
• Ideally buyers should put the onus on the seller, and ask them to inform you of any hidden dangers, limitations or quality charges
• Finally, if a buyer needs a particularly delivery date or time, it is important to make sure this is confirmed in writing.

Contracts from a seller’s point of view

If your business is selling goods and services, then it is generally preferable to use a solicitor to draw up your standard terms of trade. It’s important to remember when selling to consumers, that these terms must always be ‘fair’ and written in plain English. Sellers must ensure that the buyer is aware of, and agrees to, these terms, before the deal is made. If the contract is in writing, it should expressly refer to your terms of trade. There is often a misunderstanding about terms of trade, and some businesses mistakenly believe they can get away with incorporating these terms into an invoice. However, as a general rule, any reference to your terms of trade in an invoice will not be effective.

What should be included in a contract of sale?

• The contract should describe the product or service accurately, thereby reducing the risk of breaching the implied terms.
• Ideally it is best if a business incorporates sensible and practical margins for error by stating tolerances in technical specifications. In other words if you manufacture dining room furniture, then it is preferable to state that the measurements in your brochure may vary by several centimetres.
• It is illegal to give false descriptions and you might be sued if you do.
• The contract should explain to the buyer what to expect of the goods, for example for the price, quantity and age.
• The contract should explain to the buyer any limitations and/or defects. Exaggerated claims are best avoided.
• Contracts should allow the buyer to examine the product, and make sure instructions, including safety instructions are clear and accurate.
• If your business provides samples, then these should be representative of the real item and not mislead the customer.
• It is always advisable to get a written confirmation from a buyer if they are buying against your stated advice to avoid any future confusion or misunderstanding.

Sellers should always be wary of giving too specific advice to a potential buyer. If businesses feel obliged to offer this extra information, then it is important to be aware of all the material facts. A business cannot advise a potential buyer that a product will be suitable for their specific needs otherwise. If a business asks a buyer what they intend to use the product, and it turns out to be unsuitable, then legally they could be liable for this failure. Therefore, it is often best not to ask, or say you do not know. A business could even be found liable for customised goods if they are not fit for purpose. All that is required of the seller is that they need to be accurate and honest.