How to Defuse the Legal Time Bomb in Your Small Business

Unlike a typical time bomb, this one will not be ticking. There won’t be any warning signs. No specially trained dogs will sniff it out. No swat teams will swoop in and prevent its detonation, and as luck would have it, it will probably go off at the worst time.

Fortunately, you can find this time bomb quite easily before it detonates. You can begin your search by checking your filing cabinets, file boxes, desks and drawers for any documents with “agreement” written on it. If they’re still active agreements, slowly pull ’em out.

Agreements form the foundation of many small business transactions. Transactions between customers, landlords, vendors and government agencies are frequently governed by written agreements. What’s interesting about agreements is that they govern future activities to be performed under known and unknown circumstances – an inherently risky proposition, unless you can predict the future.

So let’s think back to when you first started your small business. How many actual “knowns” did you have? Would you say a lot has changed since you first entered into agreements necessary to get your small business going? If your small business is like most small businesses, a lot of things have changed, good and bad. As a result of these changes, you may be in breach of an agreement without even knowing it. We’re going to take care of this though.

On a nice slow morning or afternoon, grab a hot cup of coffee, tea or booze (if it has been one of those weeks) and take a few hours to flip through those agreements you pulled out to determine if you might be in breach of any of them. Boring? You bet, but it’s one of those necessary boring things, like filing a tax return or waiting in a doctor’s office. So with your agreements in hand, you may use this non-exhaustive list of clauses that might need to be reviewed:

Restrictions on permitted use of leased equipment
Restrictions on who is permitted to use leased equipment
Restrictions on use of leased property
Insurance, license and certificate requirements
Restrictions on items stored on leased property
Written consent requirements
Restrictions on leasehold improvements
Restrictions on modifications of equipment
Lessee obligations
Lessor obligations
Now, if you find something, I don’t expect you to wake that sleeping giant (I probably wouldn’t), BUT you may be able to start putting a plan together to help soften the blow in case the other party starts looking for a reason to terminate the agreement for a more lucrative opportunity. You can start planning a defense, perhaps a worthwhile explanation for your breach, or looking for substitutions, such as new suppliers, a new location or whatever it may be. Once you collect information for Plan B, just keep it on file in case you have to move quickly. You may even want to keep a cash reserve on hand in case the issue might result in litigation. Who knows, but you’ll be following the Boy Scout motto (i.e. Be Prepared), and your small business will thank you.

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