'I
was offered a contract by an agency.
They sent me an email to confirm details. I said I wanted something more than that, before I would give
notice to terminate my current contract.
They told me that this particular Client took a long time to get its
Purchase Orders sorted out, and that it would be a while before I would see the
contract itself. The best they could do
was to get a fax sent to me by the Consultancy through whom I would be working. That fax came; as a result I gave notice - but the contract never arrived, and I
was eventually told that the client had changed its plans - an no longer wanted
me.'
In
my Freelance Informer article for 24th November 2000 I dealt with a
case where a contractor had signed and returned a fax offering a contract - but
where the (full) contract itself had never arrived, and (eventually) the
unfortunate Contractor had been told, 2 days after the start date, that it was
'all off'. In that case I came to the
conclusion that there was a binding contract, and that the agency was therefore
in breach of it. That case may have
fallen close to the boundary line, but I felt that there were clear reasons why
the Contractor had a good case.
This
case however, to my mind, falls equally clearly on the other side of the line. There are three reasons for distinguishing
it.
First,
the fax which was received here was not from the agency, but from the
consultancy to which your services would (had the whole deal happened) have
been hired by the agency. We have
absolutely nothing in writing from the agency itself. And whilst contracts do not (as we all know) have to be in
writing to be enforceable, where there is nothing in writing, it can often be
much harder to show that a contract actually exists - how, in a matter such as
this, do you establish that there was any intent on the part of the agency to
be bound by any contractual relationship?
And, I hate to say it, but when he told you about the problems and
delays over getting the Purchase Order, it should have been clear that they
were not yet in a position to make firm commitments.
Secondly,
the fax from the consultancy is nothing more than a list of certain
points. It is unsigned, and simply
states the start and end dates, the rate, and the location. There is no indication of what you will
actually be doing. Now it may be said
that what you were to be doing was something which had already been discussed
and agreed, and (on that basis) would be incorporated into any contract - in effect,
that (if there were a binding contract), it would be part in writing and part
oral - certainly not unusual. But the
key difference between this and the November case is that what we have here is no
more than a list of terms - there is nothing in the unsigned document
itself which suggests that it is anything more than just a list of points under
discussion. There is nothing in it
which says eg 'we offer you a contract on these terms'. And (since you had told the agency that you
were not going to take your decision until you had written confirmation) it
follows that the fax cannot be taken as written confirmation of something
already orally agreed.
Thirdly
- and perhaps most significantly of all - having received the fax, you simply
gave notice on your existing contract, and waited for the new contract to
arrive. It has to follow from that that
even if the fax were capable of amounting to an offer (which I doubt), you do
not appear to have actually done anything to accept the offer, or to communicate
that acceptance to the person making the offer.
These
two cases, set alongside each other, illustrate one thing that all lawyers
learn fast: that advising on such
questions as these is a matter of deciding on which side of a borderline a
particular set of facts lie; and that
subtle changes in the facts can fundamentally affect the answer to that
question. Here, the facts that the fax
was unsigned and did not clearly and unequivocally appear to be an offer,
coupled with the fact that there was nothing done to actually accept the offer,
may appear to be small points in themselves - but they make all the difference
to the answer. And that will always be
the case: where there is a borderline,
there will always be cases which just fall on one side, and other cases which
just fall on the other; and whilst the
differences between the two types of case may be slight, they do nevertheless
make all the difference to the end conclusion.
All
this of course does not help you; the
best advice I can give is to be more wary next time - some agents do have a
habit of trying to get Contractors to make commitments, when they themselves
are neither ready nor willing to reciprocate.
Contractors should be alive to such practices, and should be very wary
of doing such things as giving notice to end existing contracts (or even of
declining other opportunities), until all terms are agreed, and until the new
contract is actually signed by both parties.
To handle matters any differently entails accepting a significantly higher
degree of risk - as yet one more Contractor has now found out, to her cost.
12th
January 2001
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 2001 - 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]