[consulting] started without a contract
JO
jon.subs at gmail.com
Thu Mar 14 17:45:45 UTC 2013
How did the project begin? A verbal contract is just as binding as a
written one, only harder to demonstrate. However, you may have written
confirmation of the contract in your email. If you have a track record
of email that shows the client agreeing to terms and asking you to start
working, shaping your relationship on the framework of the contract,
then you have written proof that they accepted the contract and
confirmed commitment. Receiving payment from the client also helps.
So legally, if you have proof that both parties had terms and an ongoing
work relationship, then your contract is as good as signed. Having said
that, only a court will concede that argument. The reality is that the
client will act like you have no proof, the opposing party’s lawyer will
pretend there’s no agreement (until a judge calls their BS and awards to
you,) and a collection agency will not push to collect if there’s no
signed contract. Unless you are dealing with a considerable sum of money
worth getting legal on them, you are probably better off accepting this
as a lesson and walking away.
For the Future
It was said well here – don’t trust situations in which the
“bureaucracy” is holding your contract and payment back but they do need
you to start asap. If the project is important enough to get you started
on it, it is important enough to get signed and paid. If you begin a
project this way, you should expect trouble all the way through.
Don’t hesitate to stick to your position. In my many years consulting,
I’ve seen executives sign a contract and get me a check from one day to
the other after accounting said it needed 2 weeks to process. What I’ve
never seen is a company end our engagement simply because their made up
bureaucracy was inescapable. If they are serious about the project
they’ll get right on the paperwork and payment.
Flexibility
At my most flexible, I require a signed contract and written
confirmation of payment intention. At least by email, I need to have
them say in writing “the payment is approved and being processed,” even
if it will take another 2 weeks to get the first check. With this
approach you get two things: written evidence, and mental buy-in on
their end.
Jose.
On 3/14/2013 11:23 AM, consulting-request at drupal.org wrote:
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> Today's Topics:
>
> 1. Re: Unsigned Contract Breach Question (Greg Knaddison)
> 2. Re: Unsigned Contract Breach Question (Jamie Holly)
> 3. Re: Unsigned Contract Breach Question (Sam Cohen)
> 4. Re: Unsigned Contract Breach Question (Katherine Lawrence)
> 5. Re: Unsigned Contract Breach Question (Kevin Reynen)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Thu, 14 Mar 2013 09:43:20 -0600
> From: Greg Knaddison <greg.knaddison at gmail.com>
> Subject: Re: [consulting] Unsigned Contract Breach Question
> To: "A list for Drupal consultants and Drupal service/hosting
> providers" <consulting at drupal.org>
> Message-ID:
> <CAANPUChk+yE5J2eqkVZrSFVchJTVLULa6Su7_oiOGnVgg6=ZvA at mail.gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> Thanks for sharing this event with the list - hopefully it will serve
> as a reminder of the importance of crossing the t's and dotting the
> i's.
>
> I guess here are two possible strategies you could follow.
>
> 1. You want to work with them and that is a possibility OR they might
> refer you to other people. You could use this moment to say "Boy,
> really wanted to work with you and had a team who was also excited.
> Hopefully you'll keep me in mind in the future. If you encounter other
> people who are looking to hire someone with my skills I'd really
> appreciate it if you refer me to them." People ask me for referrals
> pretty often and I am horrible at remembering beyond a very short list
> - explicitly asking for that should help keep you in his mind.
>
> 2. You don't want to work with them and/or something on their end
> means they'll never work with you and won't refer you. Send an invoice
> for time you and the rest of the team spent getting ready for the
> project. Don't expect to get anything other than a little closure -
> for sure a risky move.
>
> Either way - yeah, lesson learned. During the 4 years where I was in
> charge of contracts, I only began work without a counter-signed
> contract or check in my hand on 4 occasions. Several were as I was
> starting the company and 1 under a rushed timeframe at the end. Three
> out of 4 of them sucked. I think it's more than a coincidence :)
>
> Cheers,
> Greg
>
> --
> Greg Knaddison | 720-310-5623 | http://knaddison.com |
> http://twitter.com/greggles
>
>
> On Thu, Mar 14, 2013 at 8:25 AM, Sam Cohen <sam at samcohen.com> wrote:
>> On Thu, Mar 14, 2013 at 10:17 AM, Ryan Cross <drupal at ryancross.com> wrote:
>>> Here is a different angle:
>>>
>>> they went another way. it sucks. there is plenty of work out there. learn
>>> from the experience and spend your time lining up a new gig.
>>>
>> It's likely that's what I will do, but I did turn down another job in the
>> three weeks -- because I thought I was booked with this one -- I had also
>> arranged with other consultants to work on this project -- and they too may
>> have turned down other work because of it.
>>
>> My question is really whether or not they have any legal obligation to pay
>> at least a part of the contract.
>>
>> I doubt I'd get a lawyer over this, but I am certainly considering sending
>> them an invoice.
>>
>>
>> _______________________________________________
>> consulting mailing list
>> consulting at drupal.org
>> http://lists.drupal.org/mailman/listinfo/consulting
>>
>
> ------------------------------
>
> Message: 2
> Date: Thu, 14 Mar 2013 11:55:21 -0400
> From: Jamie Holly <intoxination at gmail.com>
> Subject: Re: [consulting] Unsigned Contract Breach Question
> To: A list for Drupal consultants and Drupal service/hosting providers
> <consulting at drupal.org>
> Message-ID: <5141F2E9.2040501 at gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1; format=flowed
>
> On 3/14/2013 9:49 AM, Fred Jones wrote:
>> Yes, there is such a thing as an implied contract, but if you were
>> exchanging a proper written contract, then that basically means that
>> you (and they) were expressly agreeing to proceed based on that
>> written contract. If they chose not to sign, then they never agreed.
>>
>> What you should have done is put in a clause like "this contract is
>> valid for 48 hours after signing" or some such. I know it's easy to
>> say that after the fact, but if it happens again....
> This is EXTREMELY important. You need to check your local laws. For
> example, here in Ohio you do have 48 hours to break a contract by law.
> My contracts state that work will start within X days of signed
> acceptance and X is never less than 48. There has been times when
> clients didn't like that and I would end up starting right away, but
> that has been very rare.
>
> Another thing I establish with any client right away is the authorized
> party. Who is the one that can make changes and authorize expenses, as
> well as sign the contract. This person is then in all communications. If
> you can prove offer, acceptance and consideration with that authorized
> person, then you do have a verbal contract and might be able to pursue
> it legally.
>
> Jamie Holly
> http://www.intoxination.net
> http://www.hollyit.net
>
>
>
>
> ------------------------------
>
> Message: 3
> Date: Thu, 14 Mar 2013 11:59:58 -0400
> From: Sam Cohen <sam at samcohen.com>
> Subject: Re: [consulting] Unsigned Contract Breach Question
> To: "A list for Drupal consultants and Drupal service/hosting
> providers" <consulting at drupal.org>
> Message-ID:
> <CAGrS=KX9UyihcPa7oPWDfDH47p4dYqvJigGQosn9mZkN_ENwWw at mail.gmail.com>
> Content-Type: text/plain; charset="iso-8859-1"
>
> Thanks Greg. I also wonder if there's a third option, which is simply
> request fair compensation without burning bridges. Let's say it was a
> $30,000 job. Perhaps I wrote a letter saying, "I understand you have made
> a decision to not go ahead with this site, but in the three weeks since I
> signed the contract I incurred cost. I turned down another project and
> secured contractors. I think fair compensation for my loss would be
> $5000.00. Would you be so kind as to pay the attached invoice..."
>
> Not sure if it's worth it, but doesn't seem like it would burn a bridge
> either, at least if it's not from my lawyer.
>
> Sam
>
>
>
> On Thu, Mar 14, 2013 at 11:43 AM, Greg Knaddison
> <greg.knaddison at gmail.com>wrote:
>
>> Thanks for sharing this event with the list - hopefully it will serve
>> as a reminder of the importance of crossing the t's and dotting the
>> i's.
>>
>> I guess here are two possible strategies you could follow.
>>
>> 1. You want to work with them and that is a possibility OR they might
>> refer you to other people. You could use this moment to say "Boy,
>> really wanted to work with you and had a team who was also excited.
>> Hopefully you'll keep me in mind in the future. If you encounter other
>> people who are looking to hire someone with my skills I'd really
>> appreciate it if you refer me to them." People ask me for referrals
>> pretty often and I am horrible at remembering beyond a very short list
>> - explicitly asking for that should help keep you in his mind.
>>
>> 2. You don't want to work with them and/or something on their end
>> means they'll never work with you and won't refer you. Send an invoice
>> for time you and the rest of the team spent getting ready for the
>> project. Don't expect to get anything other than a little closure -
>> for sure a risky move.
>>
>> Either way - yeah, lesson learned. During the 4 years where I was in
>> charge of contracts, I only began work without a counter-signed
>> contract or check in my hand on 4 occasions. Several were as I was
>> starting the company and 1 under a rushed timeframe at the end. Three
>> out of 4 of them sucked. I think it's more than a coincidence :)
>>
>> Cheers,
>> Greg
>>
>> --
>> Greg Knaddison | 720-310-5623 | http://knaddison.com |
>> http://twitter.com/greggles
>>
>>
>> On Thu, Mar 14, 2013 at 8:25 AM, Sam Cohen <sam at samcohen.com> wrote:
>>> On Thu, Mar 14, 2013 at 10:17 AM, Ryan Cross <drupal at ryancross.com>
>> wrote:
>>>> Here is a different angle:
>>>>
>>>> they went another way. it sucks. there is plenty of work out there.
>> learn
>>>> from the experience and spend your time lining up a new gig.
>>>>
>>> It's likely that's what I will do, but I did turn down another job in the
>>> three weeks -- because I thought I was booked with this one -- I had also
>>> arranged with other consultants to work on this project -- and they too
>> may
>>> have turned down other work because of it.
>>>
>>> My question is really whether or not they have any legal obligation to
>> pay
>>> at least a part of the contract.
>>>
>>> I doubt I'd get a lawyer over this, but I am certainly considering
>> sending
>>> them an invoice.
>>>
>>>
>>> _______________________________________________
>>> consulting mailing list
>>> consulting at drupal.org
>>> http://lists.drupal.org/mailman/listinfo/consulting
>>>
>> _______________________________________________
>> consulting mailing list
>> consulting at drupal.org
>> http://lists.drupal.org/mailman/listinfo/consulting
>>
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> ------------------------------
>
> Message: 4
> Date: Thu, 14 Mar 2013 10:08:00 -0600
> From: Katherine Lawrence <kl at pingv.com>
> Subject: Re: [consulting] Unsigned Contract Breach Question
> To: A list for Drupal consultants and Drupal service/hosting providers
> <consulting at drupal.org>
> Message-ID: <4C8075CF-AA05-4575-A0F6-AD7941BD5E58 at pingv.com>
> Content-Type: text/plain; charset=iso-8859-1
>
> Resend
>
>
> On Mar 14, 2013, at 10:04 AM, Katherine Lawrence <kl at pingv.com> wrote:
>
>> On Mar 14, 2013, at 7:46 AM, Katherine Lawrence <kl at pingv.com> wrote:
>>
>>> Hello Sam,
>>>
>>> There are possible avenues from the legal side that you could pursue about promises and your reliance on a promise, even a verbal one, but as a practical matter, most litigation costs more than one usually can get.
>>>
>>> In Sales 101 we are taught to ask the person who contacts you , and keep asking politely until you get a satisfactory answer, "are you the decision maker?" Too often the person who contacts you is the front-person who negotiates with us, only to find out the real decision maker has not arrived on the scene.
>>>
>>> Another way to ask this is, "tell me about how the decision will be made and a bit about who will be involved?" Another question "are others involved in making the decision to this contract?" Yet another, "is there anyone else who will be reviewing or approving the terms of this contract?"
>>>
>>> This is no a 100% solution because I have had people from well-known companies tell huge fibs, or try to re-open negotiations after a deal has had a virtual handshake, if not the real thing.
>>>
>>> We are used to running our shops. Most of us are, whether we take the title or not, "officers of the firm," meaning we can legally commit to a deal. In larger companies, the person who signs off may be a larger or two higher. Something called "signing authority" is involved in a larger organization, and the person negotiating with you may not have the authority to sign for the deal. The person we think is in charge is only the front-person. The real authority is hidden.
>>>
>>> Back to Sales 101, no sale is closed until payment is received. If a sales is going through the signature process, our internal ranking gives it only at 75% chance at best, usually 50/50 and the reason I say this is that this seems to be the reality, not only in the Drupal world, but in all executive sales.
>>>
>>> It is why we won't start work until a contract is signed and a retainer received. it is why we book hours in advance and do not move forward when the retainer runs out, and then move again when the next retainer comes in.
>>>
>>> Sad to say that we have to protect ourselves, but all too many times there are kookie-loos, tire-kickers, and people who are out window shopping when they don't have two nickels to rub together.
>>>
>>> Yours,
>>>
>>> Kate
>>>
>>>
>>> On Mar 14, 2013, at 7:24 AM, Sam Cohen <sam at samcohen.com> wrote:
>>>
>>>> Hi all,
>>>>
>>>> I'm curious if anyone has experience with something like this.
>>>>
>>>> A client who is the head of a branch of a large institution gave the go ahead for a very big project. I supplied the SOW and they supplied the contract that I was given to sign. Now because of the size of this institution, sometimes it takes weeks to get a signed contract back. And in this case after three weeks I heard back that someone over the head of the person I was dealing with changed their mind and they've decided to go another way.
>>>>
>>>> So for over three weeks I've been committed, turned down another job because I wasn't available, and had secured other people to work on that job, who may have also turned down work.
>>>>
>>>> While I'm guessing their is no legal recourse here, because I didn't have a signed contract, I'm just curious is there's such a thing as an implied contract -- after all, they gave it to me, I signed it and was not free to take other work.
>>>>
>>>> I realize we're not attorneys here, just curious if this has happened to anyone? Is it even legal to ask someone to sign a contract, but take weeks to come back with an answer?
>>>>
>>>> Thanks,
>>>> Sam
>>>>
>>>>
>>>> _______________________________________________
>>>> consulting mailing list
>>>> consulting at drupal.org
>>>> http://lists.drupal.org/mailman/listinfo/consulting
>>>
>>>
>>> ___________________________________________
>>> Pingv | Strategy . Design . Drupal
>>> 720.663.8877
>>> http://pingv.com
>>>
>>
>>
>> ___________________________________________
>> Pingv | Strategy . Design . Drupal
>> 720.663.8877
>> http://pingv.com
>>
>
>
> ___________________________________________
> Pingv | Strategy . Design . Drupal
> 720.663.8877
> http://pingv.com
>
>
>
> ------------------------------
>
> Message: 5
> Date: Thu, 14 Mar 2013 10:23:11 -0600
> From: Kevin Reynen <kreynen at gmail.com>
> Subject: Re: [consulting] Unsigned Contract Breach Question
> To: "A list for Drupal consultants and Drupal service/hosting
> providers" <consulting at drupal.org>
> Message-ID:
> <CAOfB6ej=Uw=2msT_6zriG_ahjF3pcBTMQSUpxoO-AEvrS8FtOA at mail.gmail.com>
> Content-Type: text/plain; charset="iso-8859-1"
>
> Asking for $5000 seems reasonable. Many managers would see $5K as a cheap
> wake up call that there is something wrong with their process of hiring
> contractors. The contract could have been for $130,000 and with a company
> willing to sue over it.
>
> I would include the person above the person who verbally approved the
> contract when sending that invoice. Even if you don't get paid, it may
> correct the mismanagement of contracts at that organization. Hopefully
> they'd clarify who can actually approve contracts and how that process
> needs to be handled so this doesn't happen again.
>
> Good luck!
>
> - Kevin Reynen
>
> On Thu, Mar 14, 2013 at 10:08 AM, Katherine Lawrence <kl at pingv.com> wrote:
>
>> Resend
>>
>>
>> On Mar 14, 2013, at 10:04 AM, Katherine Lawrence <kl at pingv.com> wrote:
>>
>>> On Mar 14, 2013, at 7:46 AM, Katherine Lawrence <kl at pingv.com> wrote:
>>>
>>>> Hello Sam,
>>>>
>>>> There are possible avenues from the legal side that you could pursue
>> about promises and your reliance on a promise, even a verbal one, but as a
>> practical matter, most litigation costs more than one usually can get.
>>>> In Sales 101 we are taught to ask the person who contacts you , and
>> keep asking politely until you get a satisfactory answer, "are you the
>> decision maker?" Too often the person who contacts you is the front-person
>> who negotiates with us, only to find out the real decision maker has not
>> arrived on the scene.
>>>> Another way to ask this is, "tell me about how the decision will be
>> made and a bit about who will be involved?" Another question "are others
>> involved in making the decision to this contract?" Yet another, "is there
>> anyone else who will be reviewing or approving the terms of this contract?"
>>>> This is no a 100% solution because I have had people from well-known
>> companies tell huge fibs, or try to re-open negotiations after a deal has
>> had a virtual handshake, if not the real thing.
>>>> We are used to running our shops. Most of us are, whether we take the
>> title or not, "officers of the firm," meaning we can legally commit to a
>> deal. In larger companies, the person who signs off may be a larger or two
>> higher. Something called "signing authority" is involved in a larger
>> organization, and the person negotiating with you may not have the
>> authority to sign for the deal. The person we think is in charge is only
>> the front-person. The real authority is hidden.
>>>> Back to Sales 101, no sale is closed until payment is received. If a
>> sales is going through the signature process, our internal ranking gives it
>> only at 75% chance at best, usually 50/50 and the reason I say this is that
>> this seems to be the reality, not only in the Drupal world, but in all
>> executive sales.
>>>> It is why we won't start work until a contract is signed and a retainer
>> received. it is why we book hours in advance and do not move forward when
>> the retainer runs out, and then move again when the next retainer comes in.
>>>> Sad to say that we have to protect ourselves, but all too many times
>> there are kookie-loos, tire-kickers, and people who are out window shopping
>> when they don't have two nickels to rub together.
>>>> Yours,
>>>>
>>>> Kate
>>>>
>>>>
>>>> On Mar 14, 2013, at 7:24 AM, Sam Cohen <sam at samcohen.com> wrote:
>>>>
>>>>> Hi all,
>>>>>
>>>>> I'm curious if anyone has experience with something like this.
>>>>>
>>>>> A client who is the head of a branch of a large institution gave the
>> go ahead for a very big project. I supplied the SOW and they supplied the
>> contract that I was given to sign. Now because of the size of this
>> institution, sometimes it takes weeks to get a signed contract back. And
>> in this case after three weeks I heard back that someone over the head of
>> the person I was dealing with changed their mind and they've decided to go
>> another way.
>>>>> So for over three weeks I've been committed, turned down another job
>> because I wasn't available, and had secured other people to work on that
>> job, who may have also turned down work.
>>>>> While I'm guessing their is no legal recourse here, because I didn't
>> have a signed contract, I'm just curious is there's such a thing as an
>> implied contract -- after all, they gave it to me, I signed it and was not
>> free to take other work.
>>>>> I realize we're not attorneys here, just curious if this has happened
>> to anyone? Is it even legal to ask someone to sign a contract, but take
>> weeks to come back with an answer?
>>>>> Thanks,
>>>>> Sam
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> consulting mailing list
>>>>> consulting at drupal.org
>>>>> http://lists.drupal.org/mailman/listinfo/consulting
>>>>
>>>>
>>>> ___________________________________________
>>>> Pingv | Strategy . Design . Drupal
>>>> 720.663.8877
>>>> http://pingv.com
>>>>
>>>
>>>
>>> ___________________________________________
>>> Pingv | Strategy . Design . Drupal
>>> 720.663.8877
>>> http://pingv.com
>>>
>>
>>
>> ___________________________________________
>> Pingv | Strategy . Design . Drupal
>> 720.663.8877
>> http://pingv.com
>>
>> _______________________________________________
>> consulting mailing list
>> consulting at drupal.org
>> http://lists.drupal.org/mailman/listinfo/consulting
>>
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