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TexLaw
TexLaw, Attorney
Category: Legal
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I am a self-employed entertainer/event planner in Dallas, Texas.

Resolved Question:

I am a self-employed entertainer/event planner in Dallas, Texas. I have a situation with a client and unsure how to proceed. A company requested my services and asked that I acquire another entertainer for an event on Saturday, December 15th. When I received their written commitment I proceeded to secure the other entertainer and forwarded a contract and invoice to the company. In the meantime, I and the other entertainer blocked off the date and time for this client and have not taken any other requests for that date and time as we were confirmed to work for this company. Realizing that they had not returned the signed contract and invoice, I placed a courtesy call to the client reminding them to sign the contract and return it to our office. At that time, they informed me that they had contracted another company to supply the same services but at a cheaper price and would no longer need our services. Do I have a legal leg to stand on?
Submitted: 2 years ago.
Category: Legal
Expert:  TexLaw replied 2 years ago.
Hi,

Thank you for your question. This type of situation often occurs.

You say that you received a written commitment from them. What did that written commitment exactly say?

I look forward to hearing back from you.

-ZDN
Customer: replied 2 years ago.

From: Thristina Ward [mailtoXXX@XXXXXX.XXX]
Sent: Tuesday, November 20, 2012 3:57 PM
To: 'XXXXX@XXXXXX.XXX'
Subject: RE: Event for Life Time Fitness


 



Below is the actual response I received from the representative of the company. I emailed a formal proposal and she decided to take only myself and the Santa.


 


HI Marty!


Im so sorry this took so long to get back to you. I have been out of the office and we just got our expense report back this week. Looks like we will have to cut some corners, however I am still looking to reserve Santa and the magical elf with you if all possible.



Thanks





Thristina Ward



Expert:  TexLaw replied 2 years ago.
Hi,

Thank you for your response. I'm going to have to do some legal research and read some cases from Texas to determine exactly how the courts would treat this situation. Check back with me in about an hour for your answer.

Thanks,
ZDN
Expert:  TexLaw replied 2 years ago.
Hi,

The change of position that you underwent in anticipation of the contract is what is known as "reliance" damages. These are recoverable if there is an enforceable contract.

The law in Texas states that where a party in response to the acceptance of a verbal offer sends a written contract which it expects to be signed before it will perform the services requested, the act of sending the written contract which has additional terms acts as a new offer which must be accepted by the other party before a contract can be said to have been formed. See Cranfill v. Swann Petroleum Co., 254 S.W. 582 (Tex. Civ. App. 1923).

Because it appears that not all the terms of the written contract were agreed to prior to your changing your position, there is not an enforceable contract under which you can recover your reliance damages.

In sum, unfortunately the law in Texas will not support your claim for damages.

Please let me know if you have further questions on this subject.

Best Regards,
ZDN
Customer: replied 2 years ago.

So, the written, in addition to the verbal confirmation, is not enough to help us recover damages. My son is studying business/finance law...he said that verbal agreements in Texas are just as binding as written contracts. Is that not the case?

Expert:  TexLaw replied 2 years ago.
Thank you for your response.

Your son is correct. However, the verbal agreement must contain all the necessary elements of a contract to be binding. I.e., there must be agreement on what you are doing, when you are doing it, and how much it will cost. Further,is must not fall under the Statute of Frauds, which requires that contracts must be in writing if they are over $500.00.

The problem is that you sent a written contract out that had additional terms. When you did that, you likely nullified the verbal contract, creating a situation where the other side had to accept the terms in the written contract prior to their being a binding deal.

-ZDN
Customer: replied 2 years ago.

What can we do to protect ourselves in the future? This is our livelihood...we cannot afford many more instances like this.


 


Once a client agrees to hire me on a certain day, time, and location, am I not to send a contract to confirm and protect myself?

Expert:  TexLaw replied 2 years ago.
I understand. Are your charges for your services for more than $500?

Customer: replied 2 years ago.

The majority of the time, yes...especially when I hire other entertainers to perform at the event along with me.

Expert:  TexLaw replied 2 years ago.
When customers call, you need to tell them that prior to you agreeing to work with them, they must sign your contract. That needs to be the first thing you do right off the bat before you do anything else. Tell them that you can only guarantee the availability of other entertainers you will employ to work with you on the assignment after they have signed the contract.
Customer: replied 2 years ago.

Okay...I will insist on the contract being signed before I turn down any other work for that date and time...no more verbal or written commitments other than my contract.


 


Thanks for your help!


 


 

Expert:  TexLaw replied 2 years ago.
Sure. Another idea would be to put up a website where the customer could place a deposit through paypal to reserve a date with you. The deposit would be non-refundable if they cancelled or would go towards overall payment if they end up using your services.

Just an idea.

Please remember to rate my answer positively so that I might receive payment from the website for my work on your question.

Best of Luck,
ZDN
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4268
Experience: Lead trial/International commercial attorney licensed 11 yrs
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TexLaw
TexLaw
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Lead trial/International commercial attorney licensed 11 yrs