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Re: Contract Law
For anyone who has any misunderstanding of contract law it is worth knowing that to create a contract there must be four elements present.
“Offer” – you offer your services/products.
“Acceptance” – customer accepts your terms.
“Intention to create legal relations” – i.e. By your offer and their acceptance there becomes an intention to create a legal contract/agreement between yourselves.
“Consideration” – Cost of complying with the contract, i.e. labour charge, call out charge, spare parts charge etc. Consideration can be for money or a cup of tea but there must be something given or intended to be given by the customer in payment for the service.
If any of these elements are not present there is no contract. If all elements are present then whether the contract is verbal or written it is still a legally binding contract so in this case the offer was made by yourself and accepted by the customer who paid a deposit and agreed consideration thereby showing intention to create legal relations. You could also use contract law in cases where you arrive at a job and there is no one home. You have told customer you will be there and how much it will cost, and he has accepted your offer and agreed to pay the cost of your service. Probably wont make them part up with an abortive call out charge but may be worth a try if you are out of pocket.
RoniBreach of any contract is always sue-able – if you sign a contract and breach a clause or condition of that contract then yes you can be sued.
However if a work provider (“Claimant”) brings a court action to sue for breach of contract, he would have to prove to the court that the breach has “damaged” him in some way (in this case financially) and seek to recover damages i.e. put him in the same position in which he would have been had breach not occurred.
He would have to prove beyond doubt that he would have held on to the work had the breach not taken place and prove the amount of revenue and potential revenue he has lost, present and future.
Finally and probably most importantly the court would most definitely question the “reasonableness” of the clause. and if the judge felt that the clause was unreasonable then the Claimant would lose the case and end up paying all the court costs as well and possibly the agent’s legal costs. (anyone wanting to look further into this should check out the Unfair Contract Terms Act 1977 – should be something in there setting out “test of reasonableness”) The agent could then have a counter-claim against the Claimant for lost (present & future) revenue as a result of the case if he can in turn prove that had it not been for the Claimant bringing the case he may have secured work or contracts elsewhere. I may be Nit -picking here but possibilities are endless when it comes to these things so whenever anyone wants to sue for breach of contract where a clause in that contract is potentially unreasonable they may think again.Roni
No problem – I am having a chat with a lawyer friend later tonight and will confirm the point.
Incidentally if anyone has any legal questions needing answers, particularly about consumer law, then I’m happy to research it.
If an agent has signed a contract containing such a clause, although he may be barred from approaching, say, the manufacturer direct, there is nothing to stop the manufacturer approaching the agent direct. It will come down to proving that the agent didnt approach the manufacturer direct which, if the agent is good and the manufacturer is happy to pass the work direct, then the manufacturer would probably support the agent and say that they approached him.
Goes back again to all we have discussed on this forum about cutting out middle men.Breach of contract is generally sue-able if one party is left in a lesser financial position than he would have been had it not been for the breach, so barring an agent from actually carrying out work in his field would be very difficult to sue for because he would not necessarily be putting the contractee in a lesser financial position since the agent would not necessarily be poaching work. These clauses and many other clauses are put into these contracts to frighten agents in thinking they are tied but contracts these days are hardly worth the paper they are written on because sueing for breach can be costly and time consuming and courts these days would rather these kind of civil hearings get settled outside of the judicial system as they are mostly a waste of time.
Morals versus legality? – I better get off my soapbox and leave it there because after 20 years in the legal profession I can honestly say that the law in this country is a joke! Give me the white goods trade any day!
I can get the answer to this but can you elaborate on the question. Do you mean a clause to the effect that if the agent withdraws at any time he is not allowed to continue trading in his field for a certain amount of time thereby protecting the WP who may lose certain work if the agent goes directly to the WP’s customers and poaches work. I know this is illegal in certain fields but a clause actually stopping someone trading in their professional field is definitely questionable and I would imagine pretty difficult to enforce.
Such clauses are only usually enforceable when someone is actually employed by a company i.e. a money broker leaving one company to go to a rival company and taking his clients with him. This is a clause built in to all contracts where professionals are in partnership, i.e. a solicitors practice. One partner cannot leave and take clients with him. It doesnt force him to cease working in his field it just protects the partnership.
If I am on the right track I can look into it further.
Used to do loads of work for JTM and never had a problem. Stopped working for them due to saturation of other better paid work but always found them pretty much okay.
In response to Ted’s numbered points
1) absolutely essential – I am the only one in the office who deals with customers – if I am not here my assistant takes message and I call customer back – Not always possible with some companies but I like to be first and last contact with all customers and WPs alike. Always leave mobile number if I am out for a day.
2 a) Agreed
b) Our AM calls are between 8 AM and 2 PM and our PM calls are between 12 PM and 6 PM – that way if our engineers are running late or early the 12 – 2 timeslot can be filled by AMs or PMs
c) Never give specific times. When booking call always ask customer to call me on the day if they need to go out so I can give a 2 hr window timeframe
d) 1st calls are before 10.30 but are usually dealt with by 8.30 – it gives a realistic cut off time due to London traffic etc. Dont give last calls – like my engineers to be out of Central London by 4.00
3) Never work Saturdays – but so far never been a problem
4) Agreed
5) Agreed
6) This relates to first point. I have done a refrigeration course myself and can sometimes diagnose minor faults over the phone, order the parts for it and only one visit to fit same. I think its important for office staff to have some knowledge of the industry – and I have to say it gives the customer a hell of a lot of confidence in the company.Thats my contribution!
