Unit 11 claims and complaints

A.

TEXT

It may happen in business that certain terms and conditions of the con­tract are infringed or not strictly observed by the Supplier or by the Cus­tomer. In that case the dissatisfied party writes a letter of complaint to the other party. Sometimes if the matter is serious a complaint may take the form of a formal claim which may be referred to arbitration for consideration and settlement. Both parties, however, tend to come to terms about dis­putes by negotiation¹ since arbitration may be costly and entirely undesir­able. A penalty clause is provided in the Contract indicating the penalty rates and the manner of claiming them.

Most frequently the Buyer's complaints arise from the delivery of wrong, damaged or low-quality goods. Short-shipment/ delivery of the goods is a common cause of the Buyer's complaint.

The Customer can make a claim on the Contractor if the latter does not observe² the construction and erection schedule or fails to meet the con­tractual dates for having the project (or part of it) ready for commercial operation.

H the project does not reach the rated performance during the set period it may also lead to the Customer's claiming for the retention amount.

The Supplier can claim on the Customer because of late entry visas for the Supplier's specialists, lack of permits for them, etc.

The Customer's initial data may be incomplete or even misleading. He may fail to provide in the agreed time the construction site or materials required for work and the Contractor will claim money for down time at fixed rates.

Penalties are often stipulated for late payments which is often the case³ in business with developing countries. Minor infringements can also cause complaints.

B.

The Resident Representative 20 May, 20...

Dear Sirs,

We are writing to inform you that the last consignment supplied under Contract No. ... came with a two months' delay which is a serious infringe­ment of the Contract.

Attached to the shipping documents on the equipment was your letter⁴ testifying that deliveries under this Contract are complete.

However on checking the goods received⁵ we found that one item was short-delivered and three arrived damaged which caused us considerable inconvenience. We are sustaining heavy losses since at present we are un­able to use the lot.

In view of the bad need for the goods we urge you to arrange for speedy replacement of the missing and damaged items.

In the meantime we should like to bring to your notice that we feel en­titled to claim agreed and liquidated damages because of your delay in deliv­ery. These should be paid at stipulated rates.

We hope that you will consider our claim and admit it as justified. We also believe that the matter will be settled amicably to mutual satisfaction and you will meet the claim as requested.

Yours faithfully,

C.

COMPLAINTS ABOUT DAMAGED OR DEFECTIVE EQUIPMENT

Buyer: I must offer my apologies, Mr I. It turns out item 1 got lost at the port through our oversight. We've arranged to send it to the clients.

Seller: Oh, that's good news. And what about the damaged items? Did you look into the matter?

B. We did. The acceptance report that was signed in the presence of your agent and the captain shows that three cases were damaged. We be­lieve it's your responsibility.

S. We've investigated the position as well, Mr D. The matter is that the bill of lading is a clean one.

B. Is it? Sorry, we've overlooked that.

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S. That proves that the damage must have occurred in transit.⁶ You should make a claim on the insurance company.

B. Well, we've got to make a thorough check-up with the carrier.

S. That would be reasonable. Is everything else O.K.?

B. Not quite, Mr I. During the tests one of your instruments showed manu­facturing defects. Would you like to look at the report?

S. I've seen the report. They are fairly slight, aren't they?

B. They are, and we are ready to retain the instruments. We'll try and elimi­nate the defects if you compensate us for the expenses.

S. Under the contract we should pay agreed and liquidated damages for the delay. So we'd rather do it ourselves, it'll speed things all around, no compensation.

B. All right. But you won't get paid for the consignment until everything's straight.

S. That's not fair. It's only three cases and some minor defects. You should pay for the lot, minus the damaged and faulty items. And our engineers will help you with documentation. There was a complaint about it be­fore, remember?

B. O.K. We're friends, aren't we? We'll find a way to make everyone happy.

S. I'm sure we shall.

DELAY IN COMMISSIONING THE PLANT

Customer: You've received our claim, haven't you?

Contractor: Yes, and it came as a bit of a surprise, I must say. You hold us responsible for the delay in commissioning the plant. True, the work on the project was suspended for four months, but it was the result of many circumstances, among them force-majeure ones.

Cast.: Sure, leave alone the flood and the fire. What we mean is you've delayed the start up for another three months.⁷ We may have to claim penalties at fixed rates.

Contr.: Oh, I see. Let me explain things to you then. First, for more than two months we couldn't send our specialists to you, as you were having difficulty with accommodation. Then there was the matter of entry vi­sas which couldn't come through for two months. And when our people finally arrived it turned out you were unable to get the right materials for them to work according to schedule. That was another two weeks.

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Cust.: All this Is correct. But you never brought up the question of exten­sion.

Contr.: We didn't. We saw no point in that since we're entitled to an exten­sion anyway. But we are declining the claim.

Cust.: Well, I'm afraid things are not as simple as that. We'll have to look into the matter again.

Contr.: Good. When could we have your reply?

Cust.: It'll take time. Anyway, we'll let you know as soon as we get things straight.

Contr.: O.K. We'll be expecting your message.⁸

A few days later the contractor received the following e-mail message:

THE CLAIM IS WITHDRAWN, WE SHALL GRANT EXTENTION OF THE TIME FIXED IN CONTRACT 3525.

NOTES

1. tend to come to terms about стремятся разрешить спорные disputes by negotiation вопросы путем переговоров

2. ii the latter does not ob- если тот не соблюдает serve

The latter «последний» означает последнее из упомянутых лиц.

3. which is often the case что часто имеет место

4. Attached to the shipping К отгрузочным документам было documents ... was your letter приложено письмо

5. on checking the goods при проверке полученного товара received

Причастие страдательного залога может стоять после определяемого им существительного.

6. the damage must have occur- повреждение, очевидно, произош-red in transit ло в пути

7. for another three months еще на три месяца Ср. for another two weeks — еще на две недели

8. We'll be expecting your Мы будем ждать вашего извеще-message. ния.

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