Q. I am an artist based in Limerick. Some of my clientele is in Ireland, some in the UK, and EU and some from farther afield – mainly the USA. I generally demand payment up front, but often agree to a part payment until delivery is made. Some months ago, under part payment, I shipped a consignment of four paintings to the USA. Despite repeated reminders and many unanswered phone calls, I have yet to be paid. Going forward I am worried that a customer will not pay or delivery companies will let me down, and I think I should take steps to safeguard my position to save me being ‘stung’ again, so to speak.
Dear Reader,
You should firstly have your solicitor review your standard terms and conditions of sale. As you are the supplier, generally speaking you can dictate the terms and conditions on which your goods are supplied.
An agreement of this nature would generally confirm that you own the goods until full payment is made, as well as how and when any disputes are to be resolved.
You should also ensure that there is a clause in your terms that confirm that, in the event of a dispute, the contract is formed in Ireland and issues are to be decided in accordance with Irish law and before the Irish Courts.
You should ensure that customers are aware that your terms will apply, and the terms and conditions should in turn be furnished to them at the outset (before any order is placed). You should allow no deviation from the same unless specifically in writing.
If it transpires that there is a difficulty with payment, having the Irish Courts have jurisdiction can be very useful for practical and pragmatic reasons. For example, it might be uneconomical for a debtor to dispute any debt collections proceedings you might bring in Ireland.
Getting a judgement against a debtor may not be the end of the matter, of course, and so the next step would be enforcement.
For debtors based in other EU countries, any Irish judgement is accepted in those jurisdictions, and there is a procedure whereby that debtor’s country will take appropriate steps on your behalf.
The situation with regard to non-EU countries is more complicated.
Many countries are signatories of the Hague Convention on Choice of Court, which means that your Irish judgment would be automatically accepted and enforced. Unfortunately for you, the USA is not a signatory. So in this instance you will need to obtain representation from a USA-based lawyer in the area in which the debtor is based.
On a practical basis, trying to obtain and enforce a judgement in the USA is going to be extremely difficult, so I would suggest realistically the only way to absolutely safeguard your position going forward is to look for full payment upfront.
