Q. I recently purchased an industrial freezer for use in my catering business. It stopped working over a weekend, and the food products inside were ruined. The supplier has agreed to repair the freezer, but has refused to compensate me for the lost food, claiming that they are not liable as their standard terms and conditions of sale limit their liability to only having to repair or replace the freezer. What can I do?

A. Suppliers will often seek to limit their liability for defective goods to only the cost of repair or replacement. The key issue is whether this limitation is legally effective.
As the supplier is relying on its standard terms and conditions, the first point to check is whether those terms were incorporated into your purchase contract with the supplier. Were the terms and conditions supplied to you at or before the time you committed to purchase the freezer and was it made clear the contract would be on these terms? If the terms were not supplied at all, or were only provided after the contract was formed (e.g. on the reverse side of the invoice raised following delivery), then it is likely that these standard terms do not form part of your contract, so the supplier cannot rely on the limitation clause. However, the situation may be different if you have traded with this supplier a number of times before and you have committed to their use through a course of dealings.
If the terms were supplied to you before you placed the order (e.g. on a quotation you accepted or on the order form signed by you), then it still may be that the supplier's limitation clause is unenforceable, as a court may find that it is unreasonable. Suppliers of goods and services to businesses are only entitled to limit or exclude their liability for breach of contract in their standard terms if it is reasonable to do so. Whether or not the supplier's limitation clause here is reasonable will depend on a number of factors, but a court will view any limitation clause less favourably if your attention was not specifically drawn to it before you entered into the contract.
You should also consider whether you have suffered any other losses (such as the loss of a customer) due to this event, although the position on the ability to claim for these types of losses is more complicated.
Daryl Lant is an Associate Solicitor at Howes Percival LLP, Leicester