'I was offered a contract recently by an agency, at short notice - they wanted me to start the next day. It became clear to me the first day that the contract wasn't for me. I've told the agency I don't want the position, but they're trying to bully me into continuing with it, and threatening to blacklist me, claiming I'd never work in contracting again. I haven't signed anything - they haven't even sent me a written contract!'
The key question is, 'is there a contract?'. Contracts for personal services do not have to be in writing to be legally enforceable. There must however be:
A party able to prove each of the above points is likely to be able to establish that there is a legally binding contract in force.
Let's first consider consensus ad idem. By 'material' terms I mean the core of the contract - who actually does what. Are the basics clear? Is it clear who the parties are? Who the Client is? Where the work is to be done? The rate? The period of the contract?
'Consideration' is likely to be present, in a situation where it is envisaged that you will be working and the agency will be paying.
But what about 'mutual intent to become legally bound'? Very often, this is the weak point. A document containing contract terms, which has been signed by both parties (or where each has signed an identical copy, and they've swapped copies), is pretty powerful evidence that the parties have reached consensus and have agreed to become legally bound by those terms.
What if a document containing contract terms exists and has been seen by both parties, but has yet to be signed. Detailed terms have been spelt out by one party. Is there consensus? Has the other party done anything to suggest that he/she does not accept those terms? Raising an objection to the terms - preferably in writing/fax/email - is a pretty effective way to demonstrate that the point of consensus has yet to be reached. On the other hand, actually starting work without raising objection to the terms presented can tend to suggest that there is no disagreement to those terms - and may therefore suggest consensus. Whether that also suggests mutual intention to be legally bound may be another question. Submitting an invoice or accepting payment would probably tip the balance, and indicate an intention to become legally bound.
Where it is clear that the parties intended that once agreement had been reached, such agreement would be recorded in a document signed by both, then the simple fact that such a document has yet to be signed certainly suggests that even if consensus has been reached, at least one party has yet to form the intention to be legally bound (why else has the document yet to be signed?).
The terms of the document itself can help here. One contract I saw recently said 'these terms constitute the contract upon being signed by the Contractor' - suggesting that the terms do not constitute the contract until that time - otherwise those words would be wholly meaningless. It's reasonable to presume that terms in a contractual document are intended by the parties to have a meaning, and I can't think of any other meaning those words might have, other than to imply that there is no legally binding contract until signature. So whilst in that situation there may have been consensus, one of the terms of the consensus appears to be that the parties would not become legally bound by its terms until signed by the Contractor.
The third scenario is yours - where no document has yet been produced. Leaving aside the question of whether the agency might be able to show a consensus and prove what terms had been agreed, this is an industry where the common practice is for the terms of such contracts to be in writing. I think it most unlikely that the agency would be able to establish that there was a mutual intent to become legally bound, where you had made clear that you did not want the position before even receiving (let alone signing) a written document.
So my conclusion is that I think it most unlikely that you are legally bound. And so far as the threatened 'blacklist' is concerned - don't worry! Agencies are in competition with each other, they don't share such information. There's no blacklist, formal or otherwise.
23rd 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]