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Does your contract have a payment clause?

Cashflow is the lifeblood of business. There is only so much borrowing that small and medium businesses can rely on before the lending dries up, or the liabilities threaten to exceed their assets. Therefore it is important that your contract has a payment clause to ensure that your customers pay you, so that you can pay your suppliers and employees to keep the business going.

Here are some typical reasons why businesses don't get paid even after they deliver an invoice:

The customer disputes the quality of goods or services delivered, and therefore refuses to pay.
The customer claims that the shortfall in goods or services delivered have caused loss to them, and therefore refuses to pay because the loss and damage is equal to or exceeds the amount that is still owing to the business.
The customer knows that the business owners do not want to spend time and money on court proceedings, and stonewalls any demand for payment as long as they can.

Of course, these difficulties can be overcome. The bigger question is, at what cost and to what effect? Letters of demand have limited effect, and court proceedings cost time and money, as well as add to mental pressure for people who don't take well to uncertainty.

But what if you could prevent, or at least reduce the risk of, such issues from arising?

There are many ways that a contract can pre-empt such problems. The following list is by no means exhaustive!

When the customer disputes quality

This is especially difficult when the dispute arises after the goods or services were delivered and an invoice is presented for payment. Even if you could argue that such a dispute was an afterthought because the issues were not raised at the same time as the delivery of goods and services, such an argument would only be entertained at trial. That means having to wait at least 18 months before you can shut down these sort of arguments and obtain judgment against the customer.

Therefore it is important to close off, at an early stage, such disputes over quality:

Expressly state that all disputes must be raised and resolved in writing within a certain time, or else it will be waived by the customer. Think of it as a shortened limitation period.
Have a clause which makes invoices final and conclusive within a certain period of time if not disputed, which will then make the customer take your invoices seriously. But of course, you have to be prepared for the customer to closely scrutinise every invoice you deliver before paying up.

Such clauses will prevent defences of defects or subpar quality if you ever have to obtain payment through court proceedings, and shorten the entire process.

When the customer claims loss and damage

This is a widespread situation in certain industries such as construction, where the contract is only a small cog in a bigger machine and the customer claims that delay or shortfall created a domino effect of further monetary losses. The dispute becomes expensive because by launching a counterclaim in response to your claim, you now effectively have to fight two lawsuits at the same time. This also creates a disincentive to sue because the counterclaim is quickly threatened at the first sign of any demand for payment, so for smaller businesses it is an insidious tactic.

Similarly, a few clauses can close the gate to such belated counterclaims.

Limit the time period in which parties have to make claims. However this may not be useful in situations where the customer claims that the loss and damage occurred much later.
Expressly state that any claim by the customer must be made separately without deducting payment from the business. This prevents a stalemate by threat of counterclaim, and also increases the speed at which the business can obtain judgment for payment.

Reducing the cost of dispute resolution

Although the clauses mentioned above will reduce the scope of potential disputes, the contract still must be enforced so that you can rely on the coercive power of the state to obtain payment. The threat of having to pay legal costs may incentivise the customer to pay up before legal proceedings begin, but there are other things to consider, such as preserving the business relationship. So depending on the business's desired outcome, the contract may either provide for the court to have exclusive jurisdiction to railroad the dispute towards judgment, or provide for less adversarial methods such as mediation.

Experiencing difficulty collecting payments on your invoices? Ask us about a contractual framework to make collections and enforcement easier via email ([email protected]) or LinkedIn (Boon Gan Ng).

现金是生意的命根子。公司若迟迟收不了钱，迟早会造成危机。即使中小企业能依赖贷款暂时度过难关，银行与其他的债主的能耐有限。只有保证顾客准时付款，才能付提供商与雇员，持续生意。

虽然本地生意都有发票的习惯，但难免会碰到以下的钉子：

顾客投诉货色品质差或服务逊色，而拒绝付款。
顾客指责服务不周到，或货色不齐全而造成损失，而损失等与或超过发票数。
顾客仗着对方不愿意花费追究或起诉，尽量拖延付款期限。

当然，当事人有追究的选择，但发出律师信或起诉都是在似乎亡羊补牢的状况下不得已的行动。要求信必定有极限，而且上庭必费钱、费时、费精力。

所以要有防不胜防的心态，避免类似的情况发生。合约的种种益处，以下简单列出几项：

当顾客投诉货品、服务不到家

虽然律师可能把顾客在收到发票才投诉货物、服务缺陷的行为辩为马后炮，但还是必须等到了审讯的阶段才能反驳顾客的借口。所以，为了避免花至少18月的时间等待法庭的审讯，不如在草稿合约的阶段防止顾客耍赖。

有某些条例能减少顾客以货物、服务不足作为不付款根据的风险：

设定提起品质纠纷的限期，否则等于顾客放弃提起类似纠纷的权力。
明确指定顾客必须在某期限之内反驳发票的内容，否则发票将是确凿的证据。

有了类似的条例，能助于缩短起诉程序，让当事人提早得到判书。

当顾客受损，准备反告

在某些行业（例如建筑），顾客因为当事人提供的货物、服务不齐全而受损，作为反告的跟据已司空见惯。当事人不但必须起诉顾客，同时也必须反抗顾客的反告行动，造成法律费用步步高升。许多中小企业也因此进退两难，最终放弃起诉的念头。

但是，适当的合约条例可避免类似的情况发生：

设定起诉期限，以防顾客乘机反告。
指定顾客无论有意反告，必须先付款，不准以损失作为扣留款项的理由。这能逼顾客选择是否要启动起诉程序，同时也让当事人迅速地得到判定。

减少解决纠纷的费用

有了缩小纠纷范围的条例，还是必须考虑如何执行合约。虽然顾客可能为了避免缴交昂贵的法律费用而付款，但在起诉之前当事人应当考虑其他因素，例如起诉是否负面影响双方之间的关系。为了达到当事人的目标，合约可指定双方必须通过其他方式解决纠纷，例如仲裁或庭外和解，减少冲突性。

您是否经常碰到发票过后，无法收款的困难？若须要关于合约条例的咨询，可通过电邮([email protected]) 或 LinkedIn (Boon Gan Ng) 联系我。

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