# Legal Advice re Contracts



## Beccas (Oct 10, 2014)

Hi all.  New accidental writer signing in.  I am not a proffesional writer but I have a passion for WWII history.   A couple of years ago I wrote a historical article for fun and for free and that got published in a book that contained a collection of similar articles. As a result of that I was contacted by email and asked to write a short 40,000 word book about China in WWII.

I agreed and was told I would be sent a contract and paid $2000.00.  Not much but this is a hobby rather than a job.  All this was done by email.  I have been typing away for a year now and the work is almost due.  But still no contract.  So I downed tools and informed the publisher I am not proceeding. They are not happy.

Having no idea about publishing law and contracts do you think that the agreement by email may put me at a risk of being sued. I am a bit worried about it.  Advice would be greatly appreciated and my writing career is now at an end.
Thanks
Paul


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## Elvenswordsman (Oct 10, 2014)

Yes.

The rub? It depends on which country the publisher is based out of.

In North America, contracts are very low context, and those are strong in litigation. "Yes, I'll write a novel." - even over coffee, is enough for a judge to award the plaintiff some form of considerations.

In China or Japan, however, you'll find things are very high context, but not necessarily written on paper.

In Europe, things are slightly high context, but things are normally written on paper.


So where are you from, and where is the publisher from? That'll better help answer this worry.


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## Beccas (Oct 10, 2014)

I'm based in Australia and they are in the UK
Thanks


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## shadowwalker (Oct 10, 2014)

Contact an attorney. They will have to look at the emails to determine if they do, indeed, constitute a contract. A writing forum cannot give you competent legal advice.


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## Beccas (Oct 10, 2014)

A contract lawyer will be the first port of call if I do get sued. At this stage I was hoping I could call on past experiences of people in the industry.


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## popsprocket (Oct 10, 2014)

If you're in Australia then the answer is "It's entirely possible."

Contract law here is very case dependent, but given that you agreed to do it, and in written form no less, there is compelling evidence to present to a judge. There are allowances made for informal contracts where the parties made promises but have yet to deliver on them where the contract would be void. Seems unlikely that it would be the case here, though, since you already spent so long writing.

Rather than downing tools, why didn't you simply say that you wanted to see the contract? Normally when a book is written, the money is paid upon the publisher receiving the work - especially with a new author. I'd say that if they are still in contact with you then it is likely that they simply intended to give you the dotted line to sign on once you showed them that you were actually going to deliver the book. Further, assuming that they are a real publisher (which seems likely given the time scale and material they want you to write), it would be business-suicide to take your work without your consent and publish it because you could sue them into next century for copyright violations and no author would ever do business with them again.


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## Bishop (Oct 10, 2014)

shadowwalker said:


> Contact an attorney. They will have to look at the emails to determine if they do, indeed, constitute a contract. A writing forum cannot give you competent legal advice.



Perfectly said.


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## shadowwalker (Oct 10, 2014)

Beccas said:


> A contract lawyer will be the first port of call if I do get sued. At this stage I was hoping I could call on past experiences of people in the industry.



Why wait until you get sued, which will inevitably cost a lot more than an initial consultation beforehand? That seems to be penny wise and pound foolish to me.


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## Elvenswordsman (Oct 10, 2014)

As mentioned above, you're in a region that requires you to hold contracts in low context. An e-mail is almost guaranteed win; your best bet, to save money, is to contact the publisher and request information.

I can speak for Canadian laws, but not Aussie; here, you're at least responsible for the considerations that the company had offered. That's $2000 (whatever currency). To get around that, you'd need to prove they were not in a position to or were not truly going to give those considerations upon completion.

If you want to save money, ask the publisher for information regarding what repercussions you face on non-completion.


Also, not to put down either of the Americans above, but the US is highly litigious; their "Quick to law" is because the US is streamlined for costly litigation. It's a good environment for publishers, bad for writers.

This is by no means legal advice, so if you truly want legal advice - see a lawyer.


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## Morkonan (Oct 10, 2014)

Beccas said:


> A contract lawyer will be the first port of call if I do get sued. At this stage I was hoping I could call on past experiences of people in the industry.



By the time you are sued, you will have missed the opportunity for a "best case" outcome and your lawyer will be playing "catch-up." Do not subject yourself to this. The most frequently spoken words out of a lawyer's mouth to their client is always "I_ wish you had called me before this happened."_ 

Contact a lawyer right after you finish reading this post. I'm serious about this. Don't delay. Arrange an appointment. Print out your emails. Bring reference materials and contact information for the publisher in question. Bring the money for your consulting fee and, lastly, yourself. Bring all this stuff to the lawyer's office as soon as possible.

Oh, and get someone who is familiar with contract law... Don't hire a divorce attorney for a contract dispute!


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## shadowwalker (Oct 10, 2014)

Elvenswordsman said:


> Also, not to put down either of the Americans above, but the US is highly litigious; their "Quick to law" is because the US is streamlined for costly litigation. It's a good environment for publishers, bad for writers.
> 
> This is by no means legal advice, so if you truly want legal advice - see a lawyer.



My advice to seek an attorney was not because of our litigious culture, but because it's common sense when one has a legal question of this seriousness. Even if we have contract attorneys on this forum, they would still have to look at the actual emails to see exactly what was said by each party before giving their opinion as to whether an actual contract existed. It has nothing to do with publishers versus writers, but what constitutes a legally binding contract.


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## Elvenswordsman (Oct 10, 2014)

In Canada, you ask first. Seek counsel if the answer is iffy, more information is needed, or defense is deemed necessary.


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## Beccas (Oct 10, 2014)

Thanks all.  Some great advice which I will follow and make that appointment on Monday.  I will let you know how it turns out in the end whenever that will be so other writers can learn from my mistakes and avoid getting themselves into this situation.


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## shadowwalker (Oct 10, 2014)

Elvenswordsman said:


> In Canada, you ask first. Seek counsel if the answer is iffy, more information is needed, or defense is deemed necessary.



And one would know the any of the above how? I mean, without knowing the laws (which an attorney would)? And who do you ask first? Parents? Siblings? Neighbor? Local grocer? I don't understand the reluctance here. Why _wouldn't _one consult an attorney for a serious legal matter (and I'm assuming not knowing if one has a legally binding contract, the breach of which could mean financial harm, is a serious legal matter)?


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## Elvenswordsman (Oct 10, 2014)

Had you read above, I indicated that the person to ask is "the publisher" - not a parent, sibling, or local grocer. This is fallacious scarecrowing, and will not reduce my argument.

The reluctance comes in the form of money saving; you behave as though lawsuits are pending, or in court. They are not; as indicated, the date of completion has not yet passed. Litigation will not be pursued until after that date. Proactive behaviour is more appropriate than "Let's prep for this potential court case." Around here, as I know is true of our Stateside friends, lawyers go for $100+ an hour. Taking a day or two to contact the publisher offers the opportunity to remove the opportunity of litigation, at no cost; "lawyering up" scares people, and will present the opportunity to invite lawsuit, as well as cost a penny or pound, however you like.

OP: Ask the publisher for information on what their expectations were, and what failure to meet those expectations carries as a penalty. Should they talk about any kind of financial penalty, should it be greater than the cost of 5 hours of a local contract lawyer, just pay. IF the cost is greater than those 5 hours, seek a lawyer.

This is my recommendation; I am not a lawyer, but believe this to be the route you should take.

DO NOT, however, fail to talk to your publisher; should they fail to get back to you with less than 2 weeks until the due date, contact a contract lawyer.


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## shadowwalker (Oct 10, 2014)

I disagree. Most attorneys will give the first consultation free or at reduced charge. While the due date has not yet arrived, the writing is not yet completed either; in fact, the OP stated the writing had stopped, and that the publisher 'was not happy'. Obviously the publisher feels they do, indeed, have a contract. 

It would take a competent attorney less than an hour to give a legal opinion as to whether a contract actually exists based on the emails.


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## Elvenswordsman (Oct 10, 2014)

And it would take a 15 minute call to a publisher to find out repercussions.


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## Beccas (Oct 10, 2014)

Great advice and greatly appreciated.  

Just to add another apple to the basket I found an email that says, "In September (2013) I will send you a contract to be signed and returned".  That never came.
I think I will be ok.  I will speak to the publisher first, lawyer second.


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## Elvenswordsman (Oct 10, 2014)

That's a separation between considerations. You should be okay, so long as you haven't agreed to a contract via e-mail.

Contact the publisher, ask about this contract. If they send it to you because you asked, don't sign (obviously).


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## shadowwalker (Oct 11, 2014)

Elvenswordsman said:


> And it would take a 15 minute call to a publisher to find out repercussions.



Which would be based on their presumption of having a contract. And per the OP's last post, if there's no language in the other emails which constitutes a contract, then it should be okay. But again, an attorney could read through the emails and be able to state, with clarity, whether there was such language. Again, I don't understand your reluctance to get an expert and objective opinion rather than rely on the opinion of the other party to the possible contract. Fox and henhouse.


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## Seedy M. (Oct 11, 2014)

If you'd have the experiences I've had with attorneys in three countries, you'd wish to avoid them unless absolutely necessary. Too often they are more interested in getting a case than in your questions. When they start the "There is a potentially very serious problem here due to Schmoe vs Schmuck where a man lost ... but that isn't pertinent _at the moment_. I would suggest that you retain an attorney blah, blah, blah."
That means there is no problem, but S/he might be able to manufacture one with enough incentive - like a nice big retainer.


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## shadowwalker (Oct 11, 2014)

My experience is just the opposite, not to mention my brother being an attorney - criminal defense, not civil. Of course, not a few of his clients get him because they thought they knew the law...


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## Kevin (Oct 11, 2014)

2000? Do  you have their money. No. Do they have your manuscript? No. An international case. Uhhh... what do they do, like send their attorney after you? Overseas?  For two thousand that never changed hands? How and what exactly do they collect? They're not out any money, they just didn't get the work that they didn't pay for. Do they have offices in your country? Ask an attorney. If it was here, an attorney should tell you that most likely the only money to change hands will be that going from whomever hired an attorney, to whomever they hired. Here, commonly, they give you like one free question-- 'no fee for initial consultation'


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## Morkonan (Oct 11, 2014)

In my experience with contracts, the only expert worth consulting is an expert familiar with contract law who is also unbiased and unprejudiced concerning the matter at hand. In no sense would I ever consult a party to the contract and ask them "What are the repercussions if I screw you over?" For one, there should be a non-compliance statement in any contract, a "release" clause, if you will. For another, merely asking the question puts you in an aggressive or worrisome posture, as far as the other parties are concerned. In that case, they may go to their lawyer before you can get to yours. 

Here, in the US, a typical quick consulting fee for a_ simple_ contract or legal document as far as its "interpretation" goes would run anywhere from $50 to $100, max. In this case, with no formal written and signed contract being declared present and only one that must be interpreted as existing, it may require a bit more work. But, it should remain fairly reasonable.

The only incompetent lawyer I've ever dealt with was my divorce lawyer.  Other than that, whenever I have called upon legal services, I have always had the benefit of receiving exactly what I have paid for, nothing more, nothing less. In a legal matter, it's always best to consult a lawyer, in my opinion. A consultation does not constitute litigation and I am not advocating that one should rush to litigate. For the most part, lawyers like to stay out of the courtroom and like to handle things neatly and quickly, in my experience.


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## Beccas (Oct 13, 2014)

Hi all. Legal aid sought and no, there is no email agreement in place because the consideration element of a contract had not been meet.  And the fact a contract was meant to be sent but never was puts question marks all over any potential legal action. $340.00 an hour poorer but a lot happier and I know a tiny bit about contract law now. 
My advice, do nothing without a signed contract. When you speak to publishers via email be very careful with your wording no matter how exciting it is to get the gig. 
Thanks all for your input. I am off to drink some beer. Cheers.


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## InstituteMan (Oct 13, 2014)

Beccas said:


> Hi all. Legal aid sought and no, there is no email agreement in place because the consideration element of a contract had not been meet.  And the fact a contract was meant to be sent but never was puts question marks all over any potential legal action. $340.00 an hour poorer but a lot happier and I know a tiny bit about contract law now.
> My advice, do nothing without a signed contract. When you speak to publishers via email be very careful with your wording no matter how exciting it is to get the gig.
> Thanks all for your input. I am off to drink some beer. Cheers.



Happy beer drinking. I have found that consulting with a lawyer almost always is money well spent, especially up front like this. It's much more difficult (and expensive) for lawyers to sort things out after they are well off the rails than it is to give guidance early on. I'm glad this looks like it will work out for you.


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## Morkonan (Oct 13, 2014)

Beccas said:


> Hi all. Legal aid sought and no, there is no email agreement in place because the consideration element of a contract had not been meet.  And the fact a contract was meant to be sent but never was puts question marks all over any potential legal action. $340.00 an hour poorer but a lot happier and I know a tiny bit about contract law now.
> My advice, do nothing without a signed contract. When you speak to publishers via email be very careful with your wording no matter how exciting it is to get the gig.
> Thanks all for your input. I am off to drink some beer. Cheers.



Good job! You did the right thing. Now you are _sure_ and that's worth $340.00. 

Enjoy your beer!


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