This form should be used if the seller or shipper is based outside the United States or is a US based grower who does not have a PACA trust license.  If a shipper is a US based shipper licensed under PACA, then the shipper should use the legend form instead of the trust notice.  Warning – This form is only an example.  The grower or shipper should consult with legal counsel to verify that this form is applicable to his situation!

Here is a sample PACA trust notice:

       NOTICE TO PRESERVE TRUST BENEFITS

UNDER THE PERISHABLE AGRICULTURAL

COMMODITIES ACT

TO:         [put the name and billing address of your US shipper here]

By Facsimile: [Send the notice to receiver by fax], and FedEx (Tracking #_______________)

and email [email address of receiver]

FROM: [name of your company]  Date: _____________, 2011

[Address of your company]

We give notice pursuant to the Perishable Agricultural Commodities Act that we are preserving our Trust benefits for the following unpaid invoices for shipments sold to:  [name of your receiver], at [place where you sent the product] .

Our payment terms are [put the payment terms here, be sure that these terms are no more than 30 days after acceptance of the product, if you do not have a written contract or confirmation with a payment period, use the term “PACA terms” ].  Payment by check or draft was dishonored on ___________________________________[f/n 8] .  Actual attorney’s fees incurred in bringing any action to collect on this invoice and/or enforcing any judgment granted and interest at the lower of 12% per year or the maximum legal rate shall be considered as additional sums owed in connection with this transaction [f/n 9]

f/n 1 – put the number of your invoice here, even if you are shipping on consignment, we recommend that you send out an consignment invoice [link to separate page]

f/n 2 – date of the invoice

f/n 3 – Here put the terms of your shipment.  If the term is a fixed price per unit, then place the price per unit here.  If the price is open or pas, use the word “open” or “pas” as appropriate.  If you are shipping on consignment, place the word “consignment” and add the commission term.  For example if the consignment is on a 10% commission, you would place “consignment, 10% commission.”

f/n 4 – You need to list each size  and type of produce separately if you list them separately in your invoice.  For example, if your invoice is prices each size of each produce separately, then you need to place the same description here, “Tommy Atkins mangos size 10” with the quantity, date, etc.  If you priced size 12 Tommy Atkins mangos separately in your invoice, then you would need to go to the next row of boxes and provide information for these products.

f/n 5 – This is the date when the payment is due to you.  If you are selling on a fixed price and do not have a written contract with a payment period, then the due date is 10 days after the receiver accepted the shipment.  If you are shipping on consignment, you need consult the PACA regulations to determine the information to place here.  Watch out.  If the due date here is more than 30 days from the date your receiver receives the PACA trust notice, you will lose your PACA trust rights and the PACA trust notice is worthless.

f/n 6 –  Place the total here for this row, for example, if you had 100 boxes of mangos at $5.00 per box, then you would place $500.00 in this total box.  If you are on consignment, you would not put a total here unless you had received a sales liquidation from your receiver and you agreed with the totals in the liquidation.  In the case of consignments, pas and open sales, if you do not know the total, you are not required to place a total here and you can instead put the words, “not known”.

f/n 7 – Add up all of the boxes above in the total column to place the total here.  If you do not know the total, you can use words like “not known”.

f/n 8 – If you did receive a check in payment of your shipment during the time period in which you could have still sent a PACA trust notice and then the check is returned by your bank, PACA has a special protection for when this occurs.  In such a case, you need to place the date on which your bank notified you that the check was returned. 

f/n 9 – We recommend that our shippers include this language in their PACA trust notices.  The reason we recommend that they include this sentence is that including this sentence increases the chances that they will be able to collect attorney’s fees from their receiver in the event they need to file suit against their receiver in order to be paid for the shipment.