‘My last contract did not allow me to terminate early. About 6 weeks before it expired my agent sent me a renewal schedule. I told him I’d only sign if I had the right to give notice. He said he’d send me a fresh schedule to sign, but didn’t, and I didn’t sign or return the form he sent me. The old contract expired 4 weeks ago. I’ve now decided to leave and given 1 month’s notice, but the agent claims that by continuing to work, I’ve accepted the terms of the schedule they sent me, and that I therefore have no right to terminate – so he’s asking me to withdraw my notice.’
There seem to be three possibilities:
The problem with the first lies in proving that the agent actually agreed to your request. You say the agent said he ‘didn’t anticipate that it would be a problem’ for them to agree to it, but that doesn’t quite mean his company did agree. In any case, the agent now denies the conversation – so you have the practical problem of proving it. If he had said ‘yes’, and if a Court believed your account, then you would be working under the new schedule, with the right to terminate on a month’s notice.
The second option is what the agent claims the case to be. I think he’s wrong.
If this were a new contract where the Contractor had started work without signing, then a Court might well think that there must have been some agreement, some consensus ad idem, and if there were no other possibilities on offer, the Court might well hold that the unsigned terms applied, even though unsigned.
But a Court having to decide which contract terms applied to a real-world situation would be slow to decide in favour of unsigned written terms, in a case where it is clear that the parties envisaged that once agreed, they would be signed. Put it this way – the fact that the terms are unsigned suggests that they’re not agreed. There may be other evidence of agreement – such as actually starting work. But if that other evidence is equally consistent with some other terms, then it may not be evidence of agreement to those in the unsigned document. A Court will first look to see if there are any other terms which might be consistent with the facts.
One of the terms of the original contract says ‘this agreement can be extended by both parties signing a renewal schedule’, and goes on to say ‘if the Consultant goes on to perform the services beyond the Period this agreement shall be deemed extended…’.
In other words, the original contract expressly envisaged the possibility of over-run. It also clearly envisaged that there might be extensions by both parties signing a renewal schedule (which of course hasn’t happened), and clearly states what is to happen if there is overrun without a renewal schedule being signed – exactly what has happened here. Your continuing to work on-site after the original contract end date remains entirely consistent with the terms of the original contract. Your original contract terms still apply, so far as consistent with the changed situation (ie the fact that the Period has ended).
But the original contract was for 6 months, and had no provision for notice. So does that mean that you’re stuck there for a further 6 months? I think not. The start and end dates (and therefore the duration) of the original contract are the only elements of it that clearly cannot apply.
There are two possibilities – either no notice, or reasonable notice is required. It seems to me that, having neither signed nor expressly accepted the offer of extension, you could have left on the original contract end date without giving any notice. I find it difficult to see that if you had left after that date, a requirement to give notice could suddenly arise. If such a right had arisen, then it would work both ways – so by allowing you to work (say) one extra day, the agent would have suddenly found himself committed to having you there until he had given reasonable notice, which had expired. I think this is unlikely. So I come to the conclusion that during this ‘over-run’, either you or the agent have the right to terminate, without notice, at any time.
9 January 1998
I'd really appreciate your feedback on this FAQ - so mail me and tell me what you think of it, if it's been useful to you, or let me know of any specific problem you have where I may be able to help.
[Return to Roger Sinclair's 'Welcome' page]
No liability is accepted for any inaccuracy in the information in these pages - see full disclaimer
© Roger Sinclair roger@egos.co.uk 1997 - All rights reserved - see full copyright details
The information on these pages is provided free and for information only, and is provided 'as is'. Whilst believed to be correct, it is in no way comprehensive. It is provided for your interest only and is not intended to be relied on as formal legal advice. The posting of information on these pages is not intended to create a lawyer-client relationship, and you should not act or rely on this information without seeking professional advice. No liability is accepted therefore for any errors, or for any losses that may be incurred if it is relied on.
You may read these pages on-line, and download them to read later, for your own personal use.
This copyright notice must appear on every page that you print from here.
You must not redistribute these pages or any part of them in any form or medium without first obtaining my consent.
You are welcome to set up links to this website from others.
[Return to Roger Sinclair's 'Welcome' page]