| Pages in topic: < [1 2] | Simple legal advice required Thread poster: Oriol VIP
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Lieven Malaise wrote: Christopher Schröder wrote:
If you have a contract to supply buttons daily for 10 years.... I was talking about translation and the practice of threatening to not deliver the translation you are working on, unless your client pays your invoice from an earlier assignment.
Luckily, the usual practice for us is that each project is a separate contract. There might be a master agreement (which could well include the payment terms aspect) but that plus the individual PO (or whatever form the agreement takes) will form the individual contracts for each job. I say luckily in the sense this is very different from a 10 year contract to supply buttons. Or perhaps even to translate a daily bulletin, say.
Hence yes, indeed, threatening not to perform one contract because you have not been paid for a separate contract is no more right it is than when an agency does it to us by withholding payment because they haven't been paid yet (assuming there is no provision to the contrary, a stipulation I have in fact seen in a contract I translated once - no idea if the party at the end of the chain signed it or not!).
| | | | Daryo
United Kingdom
Local time: 08:51
Serbian to English
+ ...
Charlie Bavington wrote: Lieven Malaise wrote: Christopher Schröder wrote:
If you have a contract to supply buttons daily for 10 years.... I was talking about translation and the practice of threatening to not deliver the translation you are working on, unless your client pays your invoice from an earlier assignment. Luckily, the usual practice for us is that each project is a separate contract. There might be a master agreement (which could well include the payment terms aspect) but that plus the individual PO (or whatever form the agreement takes) will form the individual contracts for each job. I say luckily in the sense this is very different from a 10 year contract to supply buttons. Or perhaps even to translate a daily bulletin, say. Hence yes, indeed, threatening not to perform one contract because you have not been paid for a separate contract is no more right it is than when an agency does it to us by withholding payment because they haven't been paid yet (assuming there is no provision to the contrary, a stipulation I have in fact seen in a contract I translated once - no idea if the party at the end of the chain signed it or not!).
It's all nice and dandy to give lofty opinions when your money is not involved.
Imagine this scenario: you made a contract with a builder do redo your kitchen. You paid in full but the kitchen is left unfinished for ages. The builder manages to convince you to give him another contract to redo the bathroom. And then is nowhere to be seen. Until one day you receive a request for payment "according to the contract" for the bathroom renovation, the one that's not even started, not to forget the unfinished kitchen.
Surely, you're going to pay promptissimo, without ever thinking of allowing such pesky principles as "reciprocity of contractual obligations" to get in the way of you paying "no matter what"?
Yeah sure, turning the other cheek usually does marvels in business.
| | | | | Not sure why any of this is relevant | Feb 29 |
Daryo wrote: (something sarky  )
For one thing, the law in many countries treats contracts between businesses differently to the way it treats consumer contracts. Businesses are assumed to be equally powerful and equally well-informed (even if we're not) and thus with equal recourse to legal redress.
Whereas it is recognised this doesn't usually apply to a consumer.
But I acknowledge that Proz is a website where almost no-one is capable of recognising that B2B and B2C are different arenas where different rules apply.
So that said, and somewhat OT, such tales of unfinished building work are of course a feature of local papers. Enforcement is recognised to be difficult, when builders won't cooperate. Yet people do return to be bitten twice, as you describe. But your example only describes a picture where nothing is being remedied, breaches are merely accumulating.
The builder is presumably in breach for the kitchen contract. The consumer seemingly in breach for the bathroom if upfront payment was stipulated. If the consumer doesn't seek redress and the builder does, then that is not the fault of the law or the legal system.
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A translation is "to the best of your ability". You can stop and say "I couldn't continue, I discovered during the process that it's beyond my abilities". You can also claim "failure to pay within a reasonable time period" if you agreed that part in advance. The risk is on the agency, because the agency is the "official translator" for the client. A judge can issue an order against you only if you have been paid in advance and didn't return the money.
The only damage to you would be potent... See more A translation is "to the best of your ability". You can stop and say "I couldn't continue, I discovered during the process that it's beyond my abilities". You can also claim "failure to pay within a reasonable time period" if you agreed that part in advance. The risk is on the agency, because the agency is the "official translator" for the client. A judge can issue an order against you only if you have been paid in advance and didn't return the money.
The only damage to you would be potential bad reputation. And yes, you can claim some payment from them for the completed part (unless you agreed otherwise), but how many lawyers or collection agencies will take on a small case involving incomplete delivery?
[Edited at 2024-02-29 23:01 GMT] ▲ Collapse
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Christopher Schröder wrote:
That doesn't make sense, legally, financially or ethically...
If you have a contract to supply buttons daily for 10 years, and after 1 year you haven't been paid anything, you cannot be expected to continue to supply buttons for the next 9 years.
Correct. Unless you agreed otherwise, the common law principle "a reasonable person under reasonable circumstances" is widely accepted in all Western legal systems. If the translator cannot reasonably continue because he's not been paid for months, requested payment and was refused, and common practice in the industry generally includes regular payments, then the case is on his side.
But be careful what you agree in the beginning of such cases. Especially the small ones, because collection agencies don't usually take small cases. If you take their agreement for regular payments even in an e-mail, you're good.
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Lefteris Kritikakis wrote:
then the case is on his side.
There would need to be a "case" of some kind. In which case, one would hope it would pan out as you describe. But the hope/expectation that a court/arbitration panel would see the "reasonableness" of a case still does not entitle you to unilaterally fail to perform obligations, even if the other party has failed to perform theirs.
Admittedly it would take quite some brass neck on the part of the button recipient to sue you for non delivery after failing to pay for your previous deliveries, but stranger things have happened
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Charlie Bavington wrote:
...does not entitle you to unilaterally fail to perform obligations, even if the other party has failed to perform theirs.
Yes, it does. Have you ever seen a lawful contract saying "you are obliged to perform even if the counterparty doesn't"?
| | | | | Good and bad contracts | Mar 1 |
Lefteris Kritikakis wrote: Charlie Bavington wrote:
...does not entitle you to unilaterally fail to perform obligations, even if the other party has failed to perform theirs. Yes, it does. Have you ever seen a lawful contract saying "you are obliged to perform even if the counterparty doesn't"?
A good contract will make provision, for when the first breach occurs, to prevent escalation of reciprocal breaches. In my experience, this is usually either for some kind of suspension while a dispute is resolved, or by serving notice of the intention to terminate after a certain period if a breach is not made good, usually without prejudice to other remedies (e.g. claiming compensation through the courts).
In a bad contract (so to speak), I'm afraid the implication is exactly as you state. You are no more entitled to metaphorically down tools (unless you've started court proceedings that include such a measure) than the victims of theft are entitled to purloin the possessions of the perpetrator. As I said before (I think ) two wrongs don't make a right. In contract law, they just make two wrongs.
And, as we see all too often, an eye for eye eventually leaves everyone blind.
[Edited at 2024-03-01 02:51 GMT]
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| Non-payment is a material term breach | Mar 1 |
Charlie Bavington wrote:
A good contract will make provision, for when the first breach occurs, to prevent escalation of reciprocal breaches...
We don't need to over-complicate things. Absent any special agreement, non-payment is a material breach of a contract, and the other party has the right to terminate. I think that's the major argument in this thread.
You are of course right, that there should or could be provisions to take it to arbitration etc or to amend the agreement in such cases. Bilaterally of course.
| | | | Lieven Malaise
Belgium
Local time: 09:51
Member (2020)
French to Dutch
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Lefteris Kritikakis wrote:
We don't need to over-complicate things. Absent any special agreement, non-payment is a material breach of a contract, and the other party has the right to terminate.
I think the problem is that for freelancers there isn't a general agreement in many cases, but only separate agreements for each assignment, i.e. purchase orders. Since they are separate agreements, legally they should be treated as such. At least in my country.
I remember signing some NDAs in a very distant past (over a decade), but it's safe to say that I have no general agreement with the majority of my best clients. There are only specific purchase orders.
| | | | Oriol VIP
Spain
Local time: 09:51
English to Spanish
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TOPIC STARTER | There is a clause about late payment, all right | Mar 1 |
In this particular case (and it is not often that you see one of those, at least it is a rare sight to me), I happen to have a clause in the signed agreement that stipulates "in case of late payment, the Contractor is entitled to a 0.1% over the delayed quantity ("delayed" as in later than 60 days) for every day of late payment". This is not copied-pasted, it's just the general meaning of the clause.
Which means I can claim a 0.1% over a delay of 2 years for a reasonable quantity. L... See more In this particular case (and it is not often that you see one of those, at least it is a rare sight to me), I happen to have a clause in the signed agreement that stipulates "in case of late payment, the Contractor is entitled to a 0.1% over the delayed quantity ("delayed" as in later than 60 days) for every day of late payment". This is not copied-pasted, it's just the general meaning of the clause.
Which means I can claim a 0.1% over a delay of 2 years for a reasonable quantity. Let's do it! ▲ Collapse
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Charlie Bavington wrote: But the hope/expectation that a court/arbitration panel would see the "reasonableness" of a case still does not entitle you to unilaterally fail to perform obligations, even if the other party has failed to perform theirs. Admittedly it would take quite some brass neck on the part of the button recipient to sue you for non delivery after failing to pay for your previous deliveries, but stranger things have happened
Maybe, but these things rarely go to court. The amounts are too small, for a start.
I wouldn't hesitate to withhold my services if I wasn't paid. I would do whatever it takes. Nothing would be off limits. Sod the law. It's my money. Gimme it.
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Lefteris Kritikakis wrote: Charlie Bavington wrote:
A good contract will make provision, for when the first breach occurs, to prevent escalation of reciprocal breaches... We don't need to over-complicate things. Absent any special agreement, non-payment is a material breach of a contract, and the other party has the right to terminate. I think that's the major argument in this thread.
I think we're basically on the same page, then. Thing is, you can't just stop delivering (or providing the service, etc.) which seemed to be the suggestion some were making. You do have to serve notice and give the defaulting party a chance to make good. Otherwise you do run the risk of being in breach yourself.
Although as Chris says, for the kind of amounts we're usually dealing with, no-one would bother taking you to court. Probably
But on a thread asking for legal advice, I think you (one) do need to be a bit pedantic and explain the likely position.
Oriol wrote:
Which means I can claim a 0.1% over a delay of 2 years
Do it I've only sent an updated invoice including late payment interest once, and the original invoice was settled a day later. I was fine with that. If you show them that you know your rights and are prepared to take steps to enforce them, it might make them think.
| | | | Daryo
United Kingdom
Local time: 08:51
Serbian to English
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| Splitting hairs on a bold head ... | Mar 1 |
Charlie Bavington wrote: Daryo wrote: (something sarky ) For one thing, the law in many countries treats contracts between businesses differently to the way it treats consumer contracts. Businesses are assumed to be equally powerful and equally well-informed (even if we're not) and thus with equal recourse to legal redress. Whereas it is recognised this doesn't usually apply to a consumer. But I acknowledge that Proz is a website where almost no-one is capable of recognising that B2B and B2C are different arenas where different rules apply. So that said, and somewhat OT, such tales of unfinished building work are of course a feature of local papers. Enforcement is recognised to be difficult, when builders won't cooperate. Yet people do return to be bitten twice, as you describe. But your example only describes a picture where nothing is being remedied, breaches are merely accumulating. The builder is presumably in breach for the kitchen contract. The consumer seemingly in breach for the bathroom if upfront payment was stipulated. If the consumer doesn't seek redress and the builder does, then that is not the fault of the law or the legal system.
What makes you think that "the client" in my example is "a consumer"?
Imagine this scenario: you made a contract with a builder do redo your kitchen. You paid in full but the kitchen is left unfinished for ages. The builder manages to convince you to give him another contract to redo the bathroom. And then is nowhere to be seen. Until one day you receive a request for payment "according to the contract" for the bathroom renovation, the one that's not even started, not to forget the unfinished kitchen.
Surely, you're going to pay promptissimo, without ever thinking of allowing such pesky principles as "reciprocity of contractual obligations" to get in the way of you paying "no matter what"?
Before "answering" (/avoiding to answer) by going sideways into irrelevant distinctions of the "B2B vs B2C" variety, could you explain how would it make ANY difference if the bathroom and the kitchen in my example happened to be part of your business premises? Would you then "pay no matter what" even quicker?
[Edited at 2024-03-01 19:14 GMT]
| | | | | Be careful your claims don´t get time barred | Mar 2 |
Oriol VIP wrote: In this particular case (and it is not often that you see one of those, at least it is a rare sight to me), I happen to have a clause in the signed agreement that stipulates "in case of late payment, the Contractor is entitled to a 0.1% over the delayed quantity ("delayed" as in later than 60 days) for every day of late payment". This is not copied-pasted, it's just the general meaning of the clause. Which means I can claim a 0.1% over a delay of 2 years for a reasonable quantity. Let's do it!
My advise would be the same as several colleagues wrote before: Get legal help from a lawyer.
If your oldest claims are 2 or more years old and so far you have "just" sent reminders, be sure your claims won´t get time-barred. This depends on the country of jurisdiction, but generally speaking reminders won´t stop your claims from getting time-barred, only legal action (filing your claims at a court) would do so.
Also I understand you have monthly invoices. As an example: in my country an unpaid invoice due in February 2021 would have been time-barred by now, I could no more legally claim it.
Get a lawyer soon, let your lawyer assess your case and take legal action.
I hope you get all your money back including late payment fees.
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