Folklore: Verbal Contracts

Subject: Folklore: Verbal Contracts
From: GUEST,Concerned
Date: 01 Aug 07 - 08:43 PM

A friend of mine has just received an e-mail from a professional musician regarding confirmation of a booking at my friends club . There WAS some discussion about a booking , but nothing has been confirmed . The date is some two months away , but has been offered already , AND confirmed elsewhere . The Non Booked musician is making threatening noises about legal action over a verbal agreement (NOT made with the knowledge of the committee). My opinion is that two months is ample notice of cancellation of a verbal agreement , especially as no proper agreement was made and I would like comments from other catters about this situation .

Subject: RE: Folklore: Verbal Contracts
From: Nick
Date: 01 Aug 07 - 08:59 PM

Is this a professional musician that your friend has never had any contact with ever or one that they have however tenuous?

Subject: RE: Folklore: Verbal Contracts
From: Nick
Date: 01 Aug 07 - 09:04 PM

Sorry too much stuff tonight - when I read it again I realise there has already been contact.

>>The date is some two months away , but has been offered already , AND confirmed elsewhere

What on earth does that mean?

And how can you cancel something that doesn't exist?

I think someone has committed themselves to something and now can't justify it so is backtracking fast (you perhaps? rather than "a friend")

Subject: RE: Folklore: Verbal Contracts
From: GUEST,meself
Date: 01 Aug 07 - 09:25 PM

I'm with Nick; this is unclear: Was there a 'verbal agreement' or wasn't there?

Subject: RE: Folklore: Verbal Contracts
From: GUEST,Concerned
Date: 01 Aug 07 - 09:45 PM

Clarification - Original contact with a committee member who has now severed connection with club . date has been booked with someone else . How binding is a verbal agreement that was not cleared with the committe , but was just from one EX committee member . Sorry for confusion .

Subject: RE: Folklore: Verbal Contracts
From: Q (Frank Staplin)
Date: 01 Aug 07 - 10:51 PM

Does your committee keep written records of meetings, etc.?

Subject: RE: Folklore: Verbal Contracts
From: GUEST,meself
Date: 01 Aug 07 - 11:01 PM

I've been jerked around by those sorts of situations, as a musician, a few times. But - these things happen. "How binding" the agreement is legally, I have no idea - I suspect not very - but there is an ethical onus on the club to somehow "make it right". I would suggest that that would be by, first of all, apologizing profusely, and then offering the performer a different date, with as sweet a deal as possible - or as is reasonable. Even if the committee isn't enamored with this performer.

It seems to me that, under the circumstances, and with the circumstances explained to the performer, two months is plenty of notice. Accept that he's annoyed, and has perhaps said or will say something intemperate, and try to repair the damage. Remember: a soft answer turneth away wrath.

Subject: RE: Folklore: Verbal Contracts
From: Rowan
Date: 01 Aug 07 - 11:48 PM

In the same way that apprentice painters would be sent to the store for striped paint plumbers would be sent (verbally) for a long weight, trainee legal eagles would be sent to a neighbouring solicitor's office for a verbal agreement form. Hopefully they'd only be caught once.

Cheers, Rowan

Subject: RE: Folklore: Verbal Contracts
From: M.Ted
Date: 02 Aug 07 - 12:36 AM

A verbal agreement can also be cancelled, verbally.   And if the committee member was not authorized to do the the bookings, there might not even have been a real verbal agreement in the first place.

A booking, like all contracts, requires a meeting of the minds--both parties have to agree--if your club makes its booking decisions by committee, and the committee didn't agree to offer the booking, but one of the members made an inquiry, then the performer may have mistaken an inquiry for an offer.

In realistic terms, the club always has the upper hand in these situations, and the performer, right or wrong, has not much choice but to go along. The threatened legal action is too costly, in both time and money, to pursue, (though sometimes, if you get somebody mad enough, they'll initiate something)--

My suggestions are(not necessarily in this order):

1) Find out from what happened from the performers point of view.

2)Call the ex-committee member and find out what he/she intended

3) Clarify the situation, to the performer politely, but directly, clearly, and firmly-

4)If there is still an issue, have a lawyer write a letter that states your position(you should have a couple lawyers amongst your club's members and supporters, and, as a habit, you should have an occasional sitdown with them to make sure the way that you and your committee are doing business isn't going to cause any other problems)--

5) Have a long discussion in which it is made clear to everyone on the committee what they can and can't say to people, performers and otherwise-

6)Offer the performer some token, perhaps even a booking at another time, with apologies for the misunderstanding. (This is optional--you don't owe anything, but bad feelings linger, and performers will talk, etc)

Subject: RE: Folklore: Verbal Contracts
From: Richard Bridge
Date: 02 Aug 07 - 02:33 AM

In which jurisdiction did these alleged things occur (if at all)?

Subject: RE: Folklore: Verbal Contracts
From: GUEST,meself
Date: 02 Aug 07 - 07:51 AM

"Offer the performer some token, perhaps even a booking at another time, with apologies for the misunderstanding. (This is optional--you don't owe anything, but bad feelings linger, and performers will talk, etc) " -

If the ex-committee member and the musician had indeed agreed on the gig, this is what's known as "doing the decent thing" - always optional, of course ...

Subject: RE: Folklore: Verbal Contracts
From: Folkiedave
Date: 02 Aug 07 - 08:11 AM

As far as a contract is concerned a verbal contract IS worth the paper it is written on.

Well it is in England and Wales -

Carlill v. Carbolic Smokeball Co. [1893]

Subject: RE: Folklore: Verbal Contracts
From: IanC
Date: 02 Aug 07 - 08:28 AM

In England/Wales law a contract consist simply of offer and acceptance. This can be verbal, but if

    (a) it wasn't witnessed by an independent person (i.e. it can't be proved)
or (b) one or both parties to the contract weren't competent to enter into the contract

then it definitely isn't worth the paper it's written on.

If an agreement is tentative then it isn't a contract and, since the musician was asking for confirmation, then that suggests it was a tentative agreement.

HOWEVER

It might be better anyway to think less of the legal implications and more about trying to steer a right course by which everyone is as satisfied as possible.

Your friend may need to do one or more or all of the following.

    (a) CERTAINLY apologise that the person making the original agreement was not competent to do so, not having sought agreement from the committee.
    (b) In the circumstances, make sure the booking is clearly cancelled.
    (c) If the musician is worth booking anyway, sort out another possible date.

In any case, make sure that everything is done in a friendly way. Having it put about that you don't honour your agreements isn't going to do the club any good.

:-)
Ian

Subject: RE: Folklore: Verbal Contracts
From: Leadfingers
Date: 02 Aug 07 - 08:39 AM

I am fairly sure that if I went to Equity with this complaint , the two month lead in would be taken as perfectly acceptable notice that the booking is NOT happening !

Subject: RE: Folklore: Verbal Contracts
From: Richard Bridge
Date: 02 Aug 07 - 03:32 PM

Please! "Oral", on the one hand, but "written" on the other. "Verbal" may be either, since it means "by words" and words may be spoken or written.

Contracts may also be formed by conduct - and indeed that is what hapened in Carlill. The plaintiff bought the smoke ball (from a third party retailer) and used it as directed.

The burden of proof in civil matters is the balance of probability. A witness is not essential - it simply makes discharging the burden of proof easier.

A contract cannot generally be cancelled by notice, whether it be written or oral.

But a contract must be sufficiently certain. The minimum would be date and fee, and it could probably be inferred that if no express terms were agreed about slots and expenses or subsistence or accommodation, then they would be "the usual".

Subject: RE: Folklore: Verbal Contracts
From: Q (Frank Staplin)
Date: 02 Aug 07 - 04:11 PM

Verbal. adj. 3. spoken rather than written (a ------ contract).
Merriam Webster Collegiate Dictionary, 10th ed.

Verbal. 4. "Expressed or conveyed by speech rather than writing; stated or delivered by word of mouth; oral."
Example- 1728, Chambers Cyclopaedia- "A verbal contract is that made merely by word of mouth; in opposition to that made in Writing."
Oxford English Dictionary.

In court of law, it is a 'verbal contract.'

Subject: RE: Folklore: Verbal Contracts
From: dwditty
Date: 02 Aug 07 - 04:20 PM

My experience has taught me that there is no way to stop someone from filing a suit.

Subject: RE: Folklore: Verbal Contracts
From: Sorcha
Date: 02 Aug 07 - 04:27 PM

Oh for pity's sake...just give it up, accept that they don't want you, somebody made a mistake and get on with your life. 2 months is plenty of time to book something else. Whingers.

Subject: RE: Folklore: Verbal Contracts
From: Folkiedave
Date: 02 Aug 07 - 04:51 PM

Surely Richard - "the usual" would not be certain? I am sure there is a case on this.

Subject: RE: Folklore: Verbal Contracts
From: GUEST,meself
Date: 02 Aug 07 - 04:52 PM

Um ... would I be whinging if I suggested you read the original post to find out what was being asked... ?

Subject: RE: Folklore: Verbal Contracts
From: Sorcha
Date: 02 Aug 07 - 04:53 PM

Grin.....yea. I think, me.

Subject: RE: Folklore: Verbal Contracts
From: Richard Bridge
Date: 02 Aug 07 - 05:05 PM

Q, NO IT ISN'T. READ SOME CONTRACT LAW TEXTBOOKS. JUST A FEW WOULD DO.

Subject: RE: Folklore: Verbal Contracts
From: Uncle_DaveO
Date: 02 Aug 07 - 05:13 PM

A verbal contract isn't worth the paper it's written on.

Dave Oesterreich

Subject: RE: Folklore: Verbal Contracts
From: M.Ted
Date: 02 Aug 07 - 06:12 PM

Richard Bridge said "A contract cannot generally be cancelled by notice, whether it be written or oral."

This is not true of performance contracts, which generally have provisions for cancellation--you could argue that a verbal or oral, or non-written agreement would follow the customary and generally accepted provisions for cancellation.

In order to have a performance agreement in the first place, you need to agree on the following things: date and time of performance, place of performance, and a specific compensation for the performance.   Without that, you've got nothing--

Subject: RE: Folklore: Verbal Contracts
From: Q (Frank Staplin)
Date: 02 Aug 07 - 06:31 PM

In the United States, a verbal contract must have three parts in order to be valid-
Offer-
Acceptance- occurs when the person receiving the offer indicates agreement
Consideration- Each side must give something of value for the agreement to be binding.

I realize that this doesn't help in the situation involved here (England?) - which I don't think any of us can comment on without receiving more information. Advice from this side of the water will be suspect in any case.

Subject: RE: Folklore: Verbal Contracts
From: Q (Frank Staplin)
Date: 02 Aug 07 - 07:22 PM

Employment contracts are often unwritten, and are thus the terms are implied.

In British Columbia, legislation makes it implicit that there is a contract of employment for every employed individual. "The terms of a verbal contract of employment will be made up of the representations made to you by the employer prior to taking the job, plus terms which are implied into every contract of employment by law." It is further stated that terms of employment will not be changed in a fundamental manner without either your consent or reasonable notice to you of those proposed changes.
Information is provided on verbal contracts involving employment is given online by canadalegal.info/prov-bc and applies to contracts in British Columbia.
Verbal contracts re support are made or implied in common law marriages.

Subject: RE: Folklore: Verbal Contracts
From: M.Ted
Date: 02 Aug 07 - 09:30 PM

Interesting idea, Q--if you consider the performer to be an employee, then the whole "at will" thing comes into play, meaning that either party can terminate the employement agreement at any time--in most US states, anyway--any opinions on this?