Sale or return - legal definition/interpretation?!!!

Pish_Pash

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Sigh, I sort of new this would happen, but it still leaves a bad taste in the mouth.

This is a continuation of my ongoing saga (akin to David wanting to hang out with Goliath)... http://www.ukbusinessforums.co.uk/threads/interest-from-a-major-chain-erhm-what-next.338901/ but this latest twist probably warrants a new thread so it doesn't get lost in the 'noise' of that very long thread.

The abridged version, I agreed to supply a large nationwide retailer approximately £10k of stock (cost to me) on a "Sale or Return" basis earlier in the year for a trial period. the trial period expired, I suspected it wasn't successful, they sent me a cheque for the full amount, I banked it & it is cleared.

Surely enough, their buyer has just contacted me today, with something along the lines of this...

"We've only sold 28% of the product you supplied, I understand these were ordered sale or return, we are happy for you to collect, but given they are spread around several hundred branches across the Uk, you may prefer to write off rather than return?"

We are talking about £7k here.

Now, I'm not about to drive around the UK collecting 2 or 3pcs from a few hundred branches, but I'm not keen to write off £7k on a whim"

In the light that they've actually already paid for these...couldn't that be considered an acceptance of a 'sale' (vs. a return?").

My main issue here, is that we supplied this product on the basis that the product would be placed on their website...it wasn't - the product we supplied them sells better on a website (vs. instore because a promotional video puts across the product's USP)...therefore they've not upheld their part of the deal...& because of this, I'm just mean to eat a £7k loss?!!

Now I'm sure their legal team are far better than mine (because I don't have one!), but would be grateful for input as to how to approach this (This customer can surely be deemed 'lost' so I don't care if I now piss them off!). The way I see it I have to options...

1. I now full declare my hand a small husband/wife type business & hope this person takes pity (towards pulling the product back in from their nationwide branches) to facilitate easier collection - being realistic, I don't see that they will...

or tell them....

2. Sorry, you've already paid for these...we consider that a 'sale' (vs. a return)...bye. (then wait for the letter to roll in from their legal team!)

I've had a quick look at their actual formal terms (standard contract) ...there's not much in there about returns at all (& nothing about sale or return...that was just a brief email along the lines of "we'd want these on sale or return")

So I guess it boils down to this question .....in legal terms when product is supplied on sale or return, can the customer - by them paying in full - be considered to have accepted the product as a 'sale' part of the term?!!!
 

Bob

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I am not a lawyer and you probably need one to give an opinion on the terms. However, from a personal point of view and using the common understanding of English, I would expect it to mean that they either sell them or they return them, i.e. the responsibility is on them to return them, at the very least to the place of delivery. They distributed them from there and surely they are responsible for collecting them from their stores.
I would be inclined to express you dissatisfaction with the way in which they had been marketed, but to help them out, you would be prepared to issue a credit note once the goods are returned to you in a saleable condition
 
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Pish_Pash

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Well, there's not a cat in hell's chance, that if I ask them to return the products, that they'd be wanting a credit note (this is not going to end well between me & their buyer, so no repeat business from them!), but I take a positive away from your contributions that the onus should be on them to return the unsold product to me! (or at least pull it all back to the point of delivery)

Any other input here? - all is welcome (but please resist the temptation to say "I told you so"...I realised this was a possible outcome, @£7k exposure it won't bankrupt me, but nevertheless it does feel like a swift kick in the slats!)
 
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JamieM

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I would insist that they return them to you. They're expectation of you to collect them from all of there stores is not reasonable and they have even indicated that they know that.

Alternatively as sale or return is not stated in the contract then reply that it was a normal sale. Or...... don't reply at all. I don't think they have legal grounds to pursue recovery of the money.
 
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As you know, I'm not a legal expert. Far from it.

But I would expect the return to be from the place you delivered to. It would be impractical for it not to be. What would they expect you to do if they had taken upon themselves to distribute the stock to overseas locations? Pick up one widget from Honk Kong, another from Spain?

Any internal distribution should be at their cost, not yours. Unless there's a contractual obligation that puts the liability on your company?
 
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Pish_Pash

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No, their PO made no reference to sale or return (preceding emails between myself & their buyer did, but without going into the details of the return aspect - this buyer was particularly aloof & irritable, at the time the deal was very precarious & I really didn't want to annoy her by getting deep down & dirty about how the return aspect would map out...so i opted to kick that particular can down the road!)

Their PO sumply says "Please supply the following goods subject to our usual conditions of purchase"

therefore they can't have it both ways....i.e. supply as "sale or return" *and* "usual conditions of purchase" (because one can't be the other & vice versa)
 
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JamieM

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You can clearly argue that whilst sale or return was mentioned in an email discussion the order was not made on that basis. I have a feeling the buyer knows they have made a mistake (especially now payment has been made) and they are chancing their luck that you might agree the return. They are taking the piss though, stand firm.
 
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Pish_Pash

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Do you have in writing their usual terms of purchase?

yes I do, it's three pages of small text legal speak...there's no mention of sale or return in there. And the only mention of a supplier 'picking up the tab for return' is if the goods are rejected (on quality issues) ...even then, it's not specific about where the goods should be collected from (i.e., every branch or their main depot)

I guess my point being...in the original email exchanges, they've ordered the goods on 'sale or return' ...but the PO wording made no mention of 'sale or return but instead quoted 'usual purchase terms' (I sense this is just because they are a big, disjointed company & the (different) dept that raised the PO were in robot mode) ...so which terms did I agreeing to - sale or return or 'usual terms of purchase'? (I suspect because it's the latter on the PO, if this was in court, then it'd be 'usual terms of purchase')

Even if the 'usual terms of purchase' it's far from clear whether I'm on the hook for collection of returns if they've simply decided they don't want the product (cos the product didn't sell as expected) vs. quality reasons etc.
 
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Pish_Pash

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I assume your invoice has their PO number on it.
Yes.
Their PO that doesn't mention Sale or Return
No.
They have paid invoice, with PO number, for the PO that doesn't mention SoR.
Yes.
What a do their terms say about changes in contact? Sumbitted in writing? What's the definition of writing?

Their terms of purchase don't seem to contain any mention of any changes to contract, their (standard issue) purchase terms do mention termination of the contract (but then again, the email I received from the buyer made no mention of termination of contract ...just said "do you want to collect the goods from several hundred branches or write the goods off?"!!)
 
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I see it that you hold the aces currently as you have their money!

Whether they can recover that, I wouldn't like to say ... I'm not a corporate lawyer.

For the money at stake, a solicitor wouldn't charge much to look through the paperwork and give you some advice.
However, I know money is of great importance to you, and you may insist on drafting an email yourself. I have experience of dealing with large supermarket buyers - if you insist on communicating without professional advice, I'd be happy to take a look at your draft and give pointers (if necessary) ... but it would be from an accountant and not a lawyer!
 
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If you agreed to SoR, you should honour it!

HOWEVER,
  1. Unless you have specifics of what the SoR agreement is, it is not unreasonable for you to request them to get the stock to one or two warehouses for collection (or as many as you delivered to).
  2. There idea of you writing the stock off is a cheek and way for them to icrease sales
  3. The fact that they have paid means nothing
  4. Did you discuss a time limit or packaging definition (e.g. only outers accepted)
  5. The fact that nothing was mentioned on their p/o works in your favour.
  6. Wasn't there a change of buyer? That could work in your favour, as well.
Assuming that you do not intend to sell to this company again, you could just say no and be done with it!

Whilst it will all depend on the paper trail, a legal chat would probably be an idea. Now, if you were a member of a business community that offered that professional advice for free (and unlimited), you could save yourself some money and have a lot of other benefits...!;)
 
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Pish_Pash

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If you agreed to SoR, you should honour it!

In life & in business ....I'm as trustworthy, dependable & honourable as you can get...I run a tight ship BUT try & turn me over I'm going to duck & dive & move about like Barry McGuigan on crystal meth - on bucking bronco machine - on a ship ....on a stormy sea.

Had they simply said "Sorry, it hasn't worked out, we've recalled the stock to our main warehouse (i.e. where you delivered it to)...can you collect within two weeks please?". I wouldn't have had any qualms (that's business), but seriously "Your stock is spread around several hundred branches...you therefore may wish to write it off"

What kind of company deals like that?!!

So alas, I'm firmly in your "However....' part of your post...
Did you discuss a time limit or packaging definition (e.g. only outers accepted).
No like I say, the deal was fragile...the buyer tetchy, such detail was kicked down the road (by me for fear of alienating an already aloof buyer)
Wasn't there a change of buyer? That could work in your favour, as well.
Yes there was - just as the stock was delivered to them! (as I said, IMHO it became orphaned at that point)

I'm worldly-wise enough to realise the prospect of any further trade with this company is something south of zilch, & frankly now - in the light of their preposterous stance - I don't care whether they're miffed at my response - also they're a the company with a £multi billion turnover, so £10k to them this isn't going to hurt them as much as £7K will me! (they may send some nasty legal letters, but will they truly see it through to court bearing in mind their procurement process was less than watertight, with a couple of "hmms..." now apparent)

So, I'll need to mull this one over a bit more over the weekend.

John...that's very gracious of you .. but if push comes to shove I can pull in some some legal help (family members...but really not keen on doing that, until I've cleared my head with a couple of nights kip & decide whether to go that way)
 
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Tip: Don't reply outside normal office hours. It will give them more of an impression that you are small fry and can be easily bullied.
They have all the time in the world to recover the money. Give the impression that you are patient.
 
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Newchodge

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    You seem to have forgotten about their breach of the agreement to put the item on their website. Seems to me that is an important issue in the failure to sell, and is entirely their fault. I would tend to explore that aspect f the failure, first.
     
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    kulture

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    I will say again, normally sale or return means the retailer either sells the good or returns them. Not make them available for pickup at one or hundreds of locations, but actually physically return them. Now normally the terms of sale would include this and say the returned goods have to be of merchantable quality. From what you say the terms do not mention return at all.

    Indeed from what you say the LAST communication from them before you dispatched the goods was the purchase order which stated was under their normal terms and conditions. This PO being the one you invoiced to and the one they paid. This is thus your contract. Not the preceding e-mails.
     
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    Pish_Pash

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    Indeed from what you say the LAST communication from them before you dispatched the goods was the purchase order which stated was under their normal terms and conditions. This PO being the one you invoiced to and the one they paid. This is thus your contract. Not the preceding e-mails.

    If that's the case, I'm on a stickier wicket, because there is mention in their standard terms that if they 'reject' ...then the supplier has to collect the goods at his own expense (no mention of where from though)....but the terms infer rejection on quality/defect grounds etc.
     
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    A great deal of misinformation floating about here. As with all things legal, it's all about the bass, sorry, no, I mean, it's all about the details.

    (And no, you can't infer anything in a contract, though you can have an implied contract, such as taking your sick aardvark to the vet, an implied contract to treat and pay for such treatment has taken place.)

    Never mind what you or anybody said, what you need to nail down is under what contract was the sale agreed? As Kulture has stated, that last purchase order is almost probably your contract. More on this topic at the end of this posting!*

    This multiple shed company in not a retail customer that can just bring goods back because it's Tuesday. They can only bring them back in accordance with an agreement.

    A SoR agreement has to be in writing and has to define terms. In plain English, it has to state what is meant by the word 'sale' and what is meant by the word 'return'.

    Every SoR agreement is different. Sale usually (though not always) means sale to a third party, typically a retail customer. Sometimes, however, it means sale to the second party. i.e. you send 'em and if we have a choice of paying for them or returning them. Strictly speaking, this is a Sale-on-Acceptance agreement. By paying for the goods, they are deemed to have accepted them. And because you are both commercial entities, the deal is therefore completed.

    Return is the sticky one! Who pays for the return? Return to whom and where? Returned in what condition? Who is entitled to initiate the return? Number of returns, i.e. all in one go or dribs and drabs? Most importantly, over what period? Three months, six months, a year, when? All these aspects of the deal have to be defined and defined clearly!

    *And now for the bit about whether a SoR agreement actually took place.

    Somewhere on their paperwork, there is possibly/probably some sort of statement in tiny, tiny letters, saying something like "All sales and supplies to Dowee, Cheetem & Howe Retail, Pet and Pies Ltd. are subject to our general terms and conditions of supply and take precedence over and to the exclusion of all terms and conditions of all and any other terms and conditions made by other parties."

    Elsewhere in all that gubbins, they may also be mentioned that a copy of their terms and conditions are available on request. (On reading said TaC, you may discover that ALL supplies are made SoR, unless otherwise agreed!)

    So I now ask you, hand on heart, have you checked, checked and checked again that there really is no such wording anywhere in your contract of supply?

    And if there is provision for rejection, are the terms of that rejection (all that bit I wrote about returns) defined?
     
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    Pish_Pash

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    So I now ask you, hand on heart, have you checked, checked and checked again that there really is no such wording anywhere in your contract of supply?

    I read through it, but nothing leapt out to this untrained eye...I've sent the documents to a relative who is a solictor (he must hate it when this happens)

    One national chain send me a book every year defining their terms of business. There are about 16 pages on how my business must deal with waste.

    Oh, they sent me through lots of stuff like that...but that was documented in their 'supplier expectations' pdf file (an 'expectation' isn't what I'd deem obligatory, therefore if it isn't legally obliging, then IMHO it's not in play here -for example, they might expect me to have a disaster recovery plan in place, but that ain't gonna happen with the present structure of my business!).

    I know I'm on thin ice, I'm not about to go all legal on them, but equally, they're being unreasonable with their present woeful two options (collect or write off)

    1. I supplied these on credit ...& on 'sale or return' (i.e I shouldered all the cost & risk)
    2. They set the sales target (& didn't tell me) ...it wasn't agreed (ok, so the definition of success/unsuccessful should have been pre-defined/agreed)
    3. They didn't put the product on their website (this product needs a video to show it.), they only distributed stock to about 30% of their branches (talk about making it hard for the customer to find/buy!)
    4. they missed shouting about the product's USP
    5. they ignored my advice about cross selling (the brand's main HQ in Asia have historical knowledge about where best to locate the product)
    6. They kept me in the dark throughout the trial (which begated the possibility of us getting involved to try & remedy the lower than expected sales)
    7. They come to me one week after sending me the cheque (full payment) to say 'can you get your (£7k!) of stock or write it off"

    So, the goal is to get them to accept that in view of the above & the widely distributed stock they still have, they're being in part unreasonable (& dare I say unprofessional)

    I then need ponder the best way to 'lever' a less damaging outcome. For example some branches have 10pcs (they must have been moving stock around, because most branches were only provided with 2-4pcs initially). If they could at least pull back stock from all those stores to their central depot, then that'll be a few hundred pieces with minimum effort on their part (they have deliveries to & from their branches all the time). Another less damaging option...I issue them a credit note (vs. hard dosh)...at least then my loss will be a little bit less (as I'll profit from supplying them with more product in future which will reduce my present loss). Or convince them to list the product on their website for a couple of months 'on clearance' blah blah.
     
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    kulture

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    Although their terms say that they can reject supply due to quality problems, I would suggest that the time for rejection is long gone. Especially as they paid in full. What remains is the sale or return. I would either tell them to go away, or offer a refund if they return the goods in merchantable condition. This is being reasonable, indeed more than reasonable.
     
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    silvermusic

    Leaving the other parts to one side for the moment, expecting you to collect from hundreds of branches across the country is taking the ****. I've worked for national national retail companies in the past in distribution. They should all be recalled to a central warehouse for you to arrange collection.

    I think they're trying it on knowing they don't have a leg to stand on, the whole thing stinks quite frankly. Terms for Sale or Return are normally quite long and very specific, I dealt with those when I was in the music trade. I know what I'd tell them to do, cheeky buggers. :mad:
     
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    there is mention in their standard terms that if they 'reject' ...then the supplier has to collect the goods at his own expense (no mention of where from though)....but the terms infer rejection on quality/defect grounds etc.

    The wording would be useful!

    At the moment, all we have here is a vague discussion about something we know nothing about. Everything hinges on the wording of those T&C and the procurement order.

    I assume that both documents were in English, so all you have to do is read the damn things!

    (The number of instances in which people sign agreements and agree to terms that they have not read, never ceases to amaze me!)
     
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    Pish_Pash

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    Like I say it's 3 pages of very small text, I don't want to copy/paste in here on confidentiality grounds.

    The way the thread discussion has now unfolded, it's now clear that actually on the basis of their PO wording, on a technicality, I've not supplied on 'sale or return', but on their standard purchase terms as you say it's all going to boil down to the clauses & wording of their 'usual terms of purchase' (& on this point, their 'usual terms of purchase' are now with a relative who's a solicitor...he'll hopefully paw through it later tomorrow & give me his thoughts).
     
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    Persoanallly based on what you have said - I'd ignore them. It appears there were NO formal terms agreed between you, and the words alone to me are not suggestive of a contract as they are open to interprettation. hence your dilemma. You for example could argue you understood the expression to mean ' you sold them to 'them' or they returned them. They paid for them, hence you sold them to them. Done. The words themselves I believe (not a legal pro mind you) have no legal bearing.
     
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    Bob

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    From what you have said, you have little to lose if you just sit tight. You supplied the goods. They paid you. They did not market the goods in the agreed manner. They believe that £7K is an amount that should just be written off. Easier for them than you. Apparently you are unlikely to do business with you again. Just do nothing. What can they do? They can sue you. To do so, presumably they will have had to return the goods to quantify the amount of the claim. There is then an argument over whether they have been returned in merchantable quality. At the end of the day, if they were to sue you, there is only a record of it if they get judgement and you fail to pay. But you have a good defence :cool:
     
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    MOIC

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    My advice is to not respond to their current letter.

    Wait for further correspondence and if needs be wait for a court summons

    It may be a good idea to actually wait (If they intend to take further legal action) to see precisely the hand they are holding as they would have to declare their evidence in the summons.

    At that point you can either agree to pay them (and incur the court fees etc) or fight the case if you feel that their grounds are not legally binding.

    Your decision will be based on economics.

    Wait for the summons, if there is one, then act.

    For sure, these groups cover themselves from a legal standpoint, but some of their staff are so incompetent, it beggars belief and can be used in your defence if you feel that is the case.

    The probability is that any returned goods will be unsaleable due to damaged packaging, so you need to view it as "losing" the 7k.(as well as the costs of collecting all the goods).

    Sit tight (for the time being).

    Continue with your business and don't let this episode get you are your wife down.
     
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    Pish_Pash

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    My advice is to not respond to their current letter.

    What I received was an informal email, from the replacement buyer who hasn't once contacted me since I handed over the stock to them in early August...they've been atrocious at communicating from day 1 (all of them) . Curt, short blunt emails....to the point of being rude/unprofessional (from initial negotiation, right through until now), so there's no love lost between me & this supplier!

    MOIC, yours is certainly a very valid strategy & from a technical standpoint is possibly the best approach, but knowing my nature, with all the bad karma that having court letters appearing brings, might not be best for my state of mind.

    By ignoring them totally, in possibly a (short) period of time, my £7k of stock will surely be lost, stolen, discarded, my preference would be somehow to test the water without mentioning 'sale or return' or 'standard terms of purchase' (as it's not clear which of these they really think is in play), to see what the possibility is of pulling them back to their main depot, so something along the lines of....

    "We will be happy to issue a credit note, once all the product has all been pulled back to the point of delivery, where we can then collect & inspect the goods, thereby quickly establishing the amount to be credited back"

    He might not even be aware payment has been made & cleared...so the bold bit should be a wake up for him & might change the dynamics of his stance. (he might panic when he realises we have their money, or that we are only offering a credit note....I can then offer hard cash vs. credit to entice him to pull the product back to their depot)
     
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    silvermusic

    I think ignoring them and playing dumb is what I'd do quite honestly, you certainly have nothing to lose with that strategy. It would appear that they don't know this stock has already been paid for, you're probably just another small supplier of thousands that gets lost in their huge scale of business. Most large firms are very bad at keeping track of the fine details, staff get moved, leave, things aren't written down, etc. I suspect the letter is a standard one just pushed out without any checking of details.
     
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    Pish_Pash

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    I suspect the letter is a standard one just pushed out without any checking of details.

    Again, it wasn't a letter, but a short email from the buyer who replaced the earlier buyer that I initially struck up the deal with (& who is now 'out of the business') this new buyer is not likely to let it go ...he'll no doubt want to be appearing efficient to his superiors (given that he's been brought in to take over the reigns from someone else)

    I think ignoring them and playing dumb is what I'd do quite honestly, you certainly have nothing to lose with that strategy

    What about my £7k of stock? At least if we can resolve this amicably (& quickly)...i.e. they pull the stock back to their main depot, I collect it & I reimburse them (or issue a credit note), on the face of it nobody loses (well, apart from the stock that's unsellable...so yes I'd lose, but lose a whole lot less than I'm likely facing now)

    Just another thought: Since this stock is spread across the UK, I could bill them for wasted time for 'stock missing' at their branches. For example, they say "Bristol has 1pc"...if it transpires hasn't (as is often the case, there are stock control error with big companies when the stock gets down to ones & twos) then I could propose billing them for mileage for the wasted trip at say 45p per mile! (& deduct that from what I owe them). Or if they say 2pcs are at Southampton & there is only 1pc, "Wasted journey due to stock matching your stated quantity" ...mileage owed.....blah, blah. (I've not really any intention of doing this, but to bring it into play should they stick rigidly to their guns about me collecting stock across the whole of the UK!)
     
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    JamieM

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    What about my £7k of stock? At least if we can resolve this amicably (& quickly)...i.e. they pull the stock back to their main depot, I collect it & I reimburse them (or issue a credit note), on the face of it nobody loses (well, apart from the stock that's unsellable...so yes I'd lose, but lose a whole lot less than I'm likely facing now)

    It's their £7k of stock.

    Under the circumstances I wouldn't even consider allowing it to be returned.

    As an aside, even if I had agreed sale or return I certainly wouldn't have allowed it to be returned in such a short space of time.
     
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    silvermusic

    What about my £7k of stock? At least if we can resolve this amicably (& quickly)...i.e. they pull the stock back to their main depot, I collect it & I reimburse them (or issue a credit note), on the face of it nobody loses (well, apart from the stock that's unsellable...so yes I'd lose, but lose a whole lot less than I'm likely facing now)

    As Jamie has also pointed out, it's not your stock, it's theirs and their problem to deal with. Forget about all this sale or return nonsense, the money's in the bank. The email about picking up stock from hundreds of branches is so laughably stupid it would be kicked out of court. The new boy is trying it on, ignore him, he knows full well he hasn't got a hope in hell of getting this to stick and you have the upper hand. If they have nothing in writing and signed by you about sale or return then it doesn't happen. Two can play at that game. They'll may well use all sorts of daft threats hoping you'll cave in due to your lack of experience. Don't reply to any more emails, it's their problem to sort out, you need to be tough and brutal with these big companies sometimes.
     
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    MOIC

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    MOIC, yours is certainly a very valid strategy & from a technical standpoint is possibly the best approach, but knowing my nature, with all the bad karma that having court letters appearing brings, might not be best for my state of mind.
    I totally agree with you regarding the receiving of court letters.

    The point being is that it will give you the exact legal details as to why the supplier feels that they can return the stock and request payment back.

    It doesn't affect your position one iota.

    What it does do is allow you to see their cards.

    From both sides, any court action will be based on economics and given the amount in question, it seems futile.

    My guess is that the outcome will be one of 2:

    1. They contact you with unprofessional methods (which you should ignore until you have a formal letter from their solicitors) and they will realise that they are getting nowhere and will let it die.

    2. They will threaten legal action (don't be intimidated) and you should acknowledge any summons, prepare your defence and agree a settlement which is fair on both sides.

    Given the nature of the case, a judge will have little sympathy for the plaintiff IF what you have said up to this point (I do not question your honesty) is factual.

    As I mentioned in my previous post, put everything on the shelf for the time being.

    Don't let this episode play on your mind.

    Worst case scenario, you ask them to post all the stock to one collection point and pay them what is outstanding.

    I would wait until I receive a letter from their solicitor, then argue the case.

    Keep everyone posted, you will get help, advice and support from this forum, that there is no question.

    Sit tight, you have nothing to gain by responding to their unprofessional email.
     
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