'I agreed to extend a contract out of goodwill for the client, on the understanding between me and the agent that I would be able to terminate on 4 weeks notice. I've given 4 weeks notice and the agency claims I'm not entitled to do so. The chap I dealt with at the agency has since left. Am I entitled to terminate?'
Maybe yes, maybe no. It depends on what the contract says - and as you haven't provided me with a copy of the contract, it's actually quite difficult for me to advise you on it! It's a bit like you saying to a colleague 'I've written some code, it doesn't work, why not?' - without actually showing him the code Each situation is different, each contract is different. So I have to proceed on the basis of assumptions.
I assume from the fact that you are asking the question in the first place that the contract document did not incorporate the agreed provision for termination by you on notice - if it had, the answer would quite simple - just tell the agency to read the contract.
You say that you agreed a notice period with the individual you were dealing with. Picture yourself in the witness box. The cross-examination would probably go something like this:
Q You are telling us that it was most important for you to have the right to terminate on notice?
A Yes
Q You say it was agreed that you would have that right?
A Yes
Q Please take a look at the contract. Is that your signature?
A Yes
Q Please show me the part of the contract where it says you will have the right to terminate on notice….Take your time…
[At that point there will be a very long and embarrassing silence.]
Q If what you are saying is true, why did you not make sure that this most important point was in the contract before you signed it?
[At that point your credibility is totally demolished. And almost certainly, you lose the case.]
There really is little point in negotiating a point which seems important to you, if (having done so) you then fail to ensure that the agreement you have reached is accurately recorded in the contract document.
Whilst in the strictest of terms the 'contract' between you and the agency is the actual state of consensus ad idem between you both (rather than the piece of paper), there are rules with a sound common sense basis to the effect that if the parties to a contract choose to record their agreement in a document which they both then sign, then it can safely be presumed that the signed document accurately records the terms of that consensus. Once there is such a document, the Court will only be willing to look at other evidence outside the document in limited circumstances - for example, if the document itself is manifestly unclear, uncertain, or silent on a point. Where individuals put their signatures to a document, then it is natural to presume that they intended to do so. And where that signature purports to acknowledge the terms of an agreement, then it is also natural to presume that the individual did actually agree to the terms of it. Often, the contract document even goes so far as to state that it represents the 'entire' agreement between the parties.
Let's have a quick review of the Egos rules for contractors:
Rule 1: Make sure you understand the contract and all its implications before you sign.
Rule 2: Treat everything in the contract as negotiable until you sign. And don't be afraid to negotiate!
Rule 3: Don't leave home without it - make sure all terms are agreed and signed before you start work.
Rule 4: Always honour the terms of contracts you enter - and expect those you contract with to do the same.
Where you seem to have gone wrong is that although you negotiated the terms that were important to you, you did not then ensure that the agreement on the point was accurately included in the document which you signed.
When you sign a document, you should always do so on the basis that (1) you agree to ALL the terms of it; (2) that the document includes ALL the terms you consider to be important, and (3) that you will then be bound by and honour ALL the terms recorded in it (and, of course, you will be entitled to expect the other party to do likewise). And if the answer to any of these is 'no' - DON'T sign the document, until and unless it is changed.
15th May 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.
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