Credit Extensions are Loans

Insist on a Completed Credit Application

A common business practice is for companies to use trade credit terms to fill financing gaps. Many creditors fail to appreciate, however, that like a line of credit from a bank, offering credit extensions to customers is essentially the same as giving them loans

Now, if you were to go to your banker for a loan, you would expect him to require a completed application. So, it makes sense that when a potential buyer asks you for credit terms, which basically is an interest-free, short-term loan, you should also require a credit application. Apples to apples, right?

So why do many credit grantors shy away from using credit applications? Fear. Fear that requesting completion of the credit application will result in the loss of a sale.

Considering the volatility of the global economy, every sale is critical. And, while making the sale is important, getting paid is what sales is all about. This is where utilizing a credit application can make all the difference.

A well-constructed credit application should be one of the cornerstones of any credit professional’s credit extension policy. Properly constructed and executed, it can:

• Aid in the decision to extend credit to potential customers
• Serve as a point of reference for gathering information in the event of non-payment
• Function as an enforceable document if litigation becomes necessary

Any financially sound buyer with good credit credentials should have no objection to completing an application. An objection should alert you that something may be wrong – either the buyer company is already trading beyond its financial limits or has something else to hide. If a potential customer refuses to buy from you because you insist on a credit application, the sale was probably headed for disaster anyway. So, even in this case, requiring a credit application helped you to make a sound credit decision by weeding out a potential bad debt situation.

Essential Elements of a Credit Application

The Sample Credit Application (linked document) was designed for use by a U.S. seller with a U.S. buyer.

Company Contact Information and Legal Data:

• Exact legal corporate name
• Legal relationships (i.e. branch, division, subsidiary, affiliate, etc.)
• Structure (i.e. sole proprietor, partnership or limited liability partnership, sub-chapter “s” corporation, “c” corporation, etc.)
• Relevant state or national identification numbers
• Names of all principals or corporate officers
• Place of incorporation, address (not a PO box)
• Email address(es) (beware of free Email Service Provider (ESP) addresses)
• Phone and fax numbers.

This detailed profile will help you locate an evasive customer in the event of non-payment. The exact legal status of the business is vital in terms of future collections. For instance, if the business is a corporate entity, unless you have a signed personal guarantee, it will not be possible to attach the owner’s personal assets.

Bank Account Information:
In the event you have a judgment and need to attach company assets, the right banker questions to ask are:

• When did the bank relationship start?
• What type of loan/line of credit?
• What are the loan/line terms?
• What’s the original loan balance?
• What’s the current balance owed?
• What is your payment history?
• Is it secured or unsecured?
• What collateral is used?

Trade References:

• Preferably in your industry.
• Should be random, unbiased and representative of your dollar amount request.

Unfortunately, customers usually provide only “good” references. Still, you should check the ones included on the credit application. Then utilize another source, if possible, like an industry credit group.

Personal Guaranty of the Primary Shareholder:
A staggering number of businesses do not survive their first five years of operation and it is often difficult to obtain much credit information on new, foreign customers. Thus, it should be a rigid credit policy that a Personal Guarantee is required of any business fitting these profiles. Internationally, this is also known as the Company Sponsor. The Personal Guarantee/Company Sponsor is an added protection for you.

If the buyer company does not have the ability to pay your account, a Personal Guarantee makes it possible to collect from the shareholder’s personal assets. In some countries, a Company Sponsor can be held legally responsible for the company’s debt. Therefore, include an area for Company Sponsor on your International/Foreign Credit Application. Understand, however, that this is only as good as the financial worthiness of the guarantor.

On the Sample Credit Application, take particular note of the section “For Proprietors, Partners and S-Corporations.” Also note the second to last sentence in the Personal Guarantee, which reads: “I authorize the seller and their assigns to obtain a consumer credit report and to contact my references as necessary.”

The U.S. Fair Credit Reporting Act (FCRA) requires sellers, when selling to consumers, to obtain specific written permission from them before obtaining a consumer credit report. In the U.S. commercial sector, sellers have routinely depended upon consumer credit reports when the buyer is a proprietor, partnership or s-corporation since, in these instances, it is the individual’s credit-worthiness, not the company’s, that is being considered for trade credit.

Commercial credit grantors have traditionally held they should be exempt from FCRA jurisdiction when a trade debt transaction is the basis for ordering such reports. And, in fact, the Federal Reserve Board, which is charged with enforcement and oversight of the Equal Credit Opportunity Act, has held that trade debt is exempt from the provisions of that law. Nevertheless, obtaining the customer’s consent to pursue a credit report is still recommended as the best strategy to avoid any potential controversy.

Terms and Conditions:
If the account ends up in court, you’ll need to prove that the buyer was fully aware of the terms and conditions of the sale. Absent a formal contract of sale, a signed credit application that includes this information is your proof.

Arbitration Clause:
Including an arbitration clause in your credit application gives you a tactical advantage over the customer. It permits you to specify jurisdictional location and method of recovery when your customer operates in a market where a credit application is not a recognizable or enforceable document. Arbitration is also generally much faster and less expensive than resorting to a lawsuit, especially in a foreign country. For more information, see our article on Final and Binding Arbitration.

Credit grantors should make sure the arbitration clause reflects their location and language, the number of arbitrators, and the name of a competent arbitration authority in their country. The particular clause in this Sample Credit Application (page 2, para 2) is structured so that any arbitration proceeding will be undertaken as inexpensively as possible. Since most of the trading world recognizes the 1958 New York Convention on the Enforcement of Foreign Arbitration Awards, including this clause in your credit application is an added protection in case of dispute. It’s also recommended to include the same clause in other documents, such as your order form or order acknowledgement.

The International Credit Application

There are a number of special conditions that should be considered with foreign buyers. Therefore, it’s recommended that you have a separate and specific credit application for International customers. You may, in fact, need multiple foreign credit applications, depending on where your international customers are located.

Make sure the credit application is signed by an authorized person:
In the United States, there is the concept of “strength of title”. This means, for instance, that a Vice President’s signature on any corporate document would be legally binding on the company, even if he was not authorized by the company to sign on its behalf.

In most other countries, however, there is no such concept. The only person that can legally sign documents for a company (including credit applications, contracts and other documents) is the person who signed the official company register and was named as the person authorized to contract for the company. If another person signs, the document will not be legally binding.

Many countries have online access to the company register. In any search engine, just search on “company register” and the name of the country where the customer is located. While some countries will have this information only in their own language, many provide bilingual information in English and in the country’s native tongue. If you can’t get it in English, use Google Translate.