Before we start, I need to explain that I am not a lawyer. My father was a law lecturer, and my mother
was a very eminent solicitor. One of her
main specialisms was contract law. But I
am not a lawyer. I am offering general
information, not legal advice.
I have been interested in law for a long time, and I do know the basic elements of contract law.
The purpose of this article is to deal with a hypothetical situation
in which a freelance writer is selling a piece of writing or other service (proof-reading,
editing, teaching, and so on) to an outlet. It will include analogies with
other kinds of transaction in order to make some legal concepts as clear as
possible.
A contract is a legally binding promise (written or spoken) by one party to fulfil an obligation to another party in return forsomething called a “consideration”. A basic binding contract must comprise four key elements: offer, acceptance, consideration and intent to create legal relations.
“Intent to create legal relations” means that if you say to your Derby County supporting friend that you will eat your hat if Derby beat Leeds on Saturday, and they do, your friend cannot take you to court over the matter. It means things to do with buying and selling.
A contract often begins with something called an “invitation to treat”. An invitation to treat is less serious than an “offer”. Words like “offer” and “acceptance” are potentially binding. Here is an example to illustrate some of the terms.
I go into a branch of Currys to buy a flat-screen TV. I find a model I like, and it is advertised
for sale at 99 pence. I ask the assistant
if I can have the TV for 99 pence. She
says no. I say, “But the price label
says 99 pence”. The price label is an
invitation to treat. It is not binding. I go to the desk, and am told that the price
is £499. (“Offer.”) I say that I will have the TV for £499. (“Acceptance.”) That means that I have to pay Currys £499, in
return for which, I will get that flat-screen TV.
On the basis of information which is very scant, because of the constraints of social media, I will now try to run that past you again, based on a recent example to do with writing. Most of what follows is made up, because I don’t have the full case history.
A body concerned with the arts, called Indulgent Projects,
advertises for a copy writer, to write 3000 words in a forthcoming
brochure. The advertisement says that
the recipient of the work will be paid “the market rate”, and asks for 50-word
proposals, from which the selection will be made.
A writer, called Harriet Struggler, responds to the advertisement
with her 50 word proposal. She receives
an email which does not explicitly say that she has been selected, but asks her
to provide the full piece, of 3000 words.
Harriet books time in her schedule to write the 3000 words. She sends an invoice to Indulgent Projects for
£995.
Indulgent Projects then email Harriet to say that they are not
going to pay her anything, because they have found someone else, who will do it
for nothing.
What is Harriet’s legal position?
It comes down to whether a contract has been formed. The details of offer and acceptance may
depend on the wording of individual emails or messages. The point is that there
does not have to be paper and ink for the formation of a contract.
In my example, the request for the 3000 word piece is the offer, and the sending of the invoice is the acceptance. After that, it is not up to Indulgent Projects whether they want to pay, or not: they have to pay.
Lawyers, writers, publishers are welcome to contribute in the comments.
The next stage, having established a grievance, is how we go about prosecuting it, and what remedy we seek.
iamhyperlexic 