In previous posts, I have highlighted attempts to avoid mandatory legislative requirements such as the right to suspend or claim interest for late payments by including unenforceable conditions in a contract (in the hope your contract partner does not know the law?).
Another rather underhand approach to contracts is to make compliance with a legal right almost impossibly tricky, to try and persuade your contract partner not to rely on that right.
One example I came across in a subcontract said:
If the Contractor fails to issue a Payment Notice then the Subcontractor may serve a default payment notice. Any such notice shall only be valid if (1) sent by recorded delivery and (2) marked for the attention of the Group Financial Director and (3) if it sets out the sum the Subcontractor considers to have been due on the due date for payment and (4) the basis of its full calculation and (5) provided it includes full supporting information which the Contractor may require
Five hoops! If any one of those hoops is missed or stumbled over, the contractor will argue the notice is not valid and the subcontractor is not owed a penny. Shame on it!
The legislation on which this clause is based (which is hardly a model of clarity itself) says the notice needs to set out:
(a) the sum that the payee considers to be or to have been due at the payment due date in respect of the payment, and (b) the basis on which that sum is calculated [s110B(2) and s110A(3) of the Construction Act 1996, introduced by s143 of the Construction Act 2009]
The contract clause is deliberately intended to undermine the legislation.
This is not how you create trust in a contract. It’s how you bully another company.