Preston Russell Law - Legal Services for Southern People

Terms of Trade

Sunday, August 16, 2009 by Sean Woodward, senior associate category Commercial Law

The South Island may not yet be feeling the full brunt of the economic slowdown, but it is clear that the general economy is slowing. In that environment it is inevitable that business failures will increase. Trade creditors should review and update their terms of trade, and debtor management practices. Trade debtors need to be conscious of their duties to creditors, and should act quickly if they start seeing signs of distress. Both creditors and debtors need to understand their options and rights if a debtor begins showing signs of distress.

Terms of trade

Your terms of trade should:
 
• be in writing and signed (or assented to in writing) by the debtor;
• enable you to undertake credit checks and require references;
• may include a personal guarantee;
• provide for interest on late payments at a rate that ensures you are not the “banker of last resort”;
• indemnify full solicitor/client costs and collection costs;
• include a “retention of title” (to be effective you must register your security at www.ppsr.govt.nz and update it every 5 years. You should register the security before you provide goods to the debtor);
• provide for “voluntary administration” of the debtor, and require that the administrator seek your consent before selling goods in which you have security.
 
Debtor management
 
If debtors are finding times tough, then careful management of your debtor control systems can assist to protect you. Review and enforce your debtor management policies and ensure that these are enforced firmly and in a timely fashion.
 
Consider if you should be reducing credit limits if these have not been used to the full extent. Also ensure your terms of trade are managed tightly. Ensure system generated arrears reports are prepared and reviewed regularly. Consider offering an early discount if payments are made early. If payment reminders are needed, make sure they are sent on time, or (more preferably) telephone the debtor and obtain a specific date for payment.
 
You may also want to update your standard credit and other checks on key clients. Useful information can be found on Government websites such as www.companies.govt.nz.
 
Proactive action by debtors is key
 
As a debtor, when times get tough, proactive management is key to weathering the storm. If you are having trouble paying, talk to your creditors early – everyone is better off if you can trade through the tough times. Remind yourself of your personal responsibilities to creditors, and the risk you may face of personal liability. If you breach your duties to your company (including the duty to keep proper records of account) you can be held liable for the debts of the company.