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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34147
Experience:  Retired (mostly)
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Is there anybody whos familiar with freelance contractor law?

Customer Question

Is there anybody who's familiar with freelance contractor law? I'm a designer and have this client who refuses to pay the extra cost we had over the estimate. He argued that I gave him a fixed bit, but I told him in an email that it's an estimate, and in our contract, it also says:

6. Change in Specifications

Client may, in its sole discretion, request that changes be made to the Specifications, or other aspects of the Agreement and tasks associated with this Agreement. If Client requests such a change, Designer will use its best efforts to implement the requested change at no additional expense to Client and without delaying delivery of the Prototype. In the event that the proposed change will, in the reasonable opinion of Designer, require a delay in delivery of the Prototype or would result in additional expense to Client, then Client and Designer shall confer and Client shall, in its discretion, elect either to withdraw its proposed change or require Designer to deliver the Prototype with the proposed change and subject to the delay and/or additional expense.

They asked me to make a million changes in the process and that's why it exceeded the time anticipated. I told them in the middle of the project that it's going to cost $200 more, and he didn't say anything to disapprove it, so I made the changes he wanted. Now the project is done, and he refused to pay any extra hours we worked for. If we go to small claim court, can I win?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  socrateaser replied 2 years ago.
This is straightforward contract law. Parties may agree to modify a contract in mutual good faith without additional consideration. If you stated that the contract required modification in fees, because of the changes demanded, then you are entitled to be paid for the change, either in the amount expressly agreed, or in "quantum meruit," which is the reasonable value of services rendered.

The problem is that without a written change memoradum, it's your word against the client's as to what changes would be made and for what fees charged.

If your email was replied to by the client, so that it's obvious that there was a written communication between you, and that the client did not object to your added charge, then that would be sufficient evidence of the agreed upon modification to bind the client. If the client did not reply, then you would have to show that the change memo was received and that the client agreed to that change. This could be an impossible burden to meet, if the client denies having received your email.

That's how it works. You may be absolutely correct and in compliance with the contract, but you will still have to prove in court that the client knew of your additional charge before you continued the design changes, and that the client responded affirmatively to your change memo.

Hope this helps.

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Customer: replied 2 years ago.
Thanks for the quick response. I have a follow-up question if you don't mind: because the client refused to pay me the extra cost, I cut off his access to the design files for a few days, and today I gave him the access again and told him that if he doesn't pay the remaining fees(NOT included the extra) by a certain time, I will take away the access until he pays. He said he talked with his lawyer, and his lawyer said in our contract, it didn't require him to pay before receiving the files.

Do I have right to suspend the client's access to the design files if he doesn't pay me?
Expert:  socrateaser replied 2 years ago.
The question is whether or not he agreed to the change. If he did, then he is entitled to the benefit of the bargain, which means your performance in compliance with the contract terms and conditions.

If he did not agree, then his failure to perform suspends your obligation to perform any further changes under the contract. In which case, you would only owe him the design prior to the date that any changes were made.

This is an opportunity to get the client to agree in writing to the additional fees. If the client rejects the additional charge, then you are entitled to reject any further changes. If you have files that existed at that point without the changes, then that would be all you owe the client, i.e., the original design.

Thus, the answer to the question here is that you cannot simply take away the client's access to the files as punishment for the failure to agree to the changes. You can supply the files as if they were never changed, however, because that's all the client would have agreed to. And, if the client wants the files with changes, then you are entitled to a written confirmation of the additional charges.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser, Lawyer
Satisfied Customers: 34147
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
What if he doesn't pay the remaining amount for the original design that he still owes me, then can I take away his access?
Expert:  socrateaser replied 2 years ago.
If the contract does not provide for this outcome, then you cannot deny access, because the client's breach is based upon your delivery of the design. If you bar access to the design, then the client no longer has any requirement to perform, and so he/she cannot be in breach of contract.

In order for you to have a cause of action, the client must receive what he/she paid for, and then refuse to pay the consideration/money agreed to in exchange. That's what gets you into court with a lawsuit for breach of contract.

Hope this helps.

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