Editorial Freelancers Association



August 22, 2017 - 10:59 AM

EMPLOYERS

FREELANCERS


News, Discounts, and Coming Soon: Updates on New Website

Chapter 4. Contracts and Disputes

Updated and revised: September 2007

  • Documenting Agreements
  • Resolving Conflicts
  • Contract Checklist

Contracts between editorial freelancers and clients can be oral, written, or electronic; they can be formal or informal. A contract need not be in legalistic language, labeled a contract, or documented in writing to be valid. A contract is simply an agreement between at least two parties, and to be binding, that agreement must be acknowledged by all involved. Any terms suggested by one party but unacceptable to the other are not a valid part of the contract.

When a project runs smoothly, people clearly remember oral agreements and easily accommodate each other with changes. When difficulties arise, people tend to forget oral agreements, which they now see as disadvantageous, or they tend to remember the agreement differently. Because contract terms not in writing are often elusive, even though both parties agreed to them, both freelancer and client benefit when contracts are written and detailed. The written document is always consulted when problems occur.

When conflicts arise in spite of a contract, the parties have options for resolution. Many disputes can be resolved through simple discussion and renegotiation. Others require intervention. Options include mediation, arbitration, and court action. All are possible mechanisms for resolving conflict, but both freelancers and clients benefit from avoiding disputes and addressing difficulties as soon as they arise.

Documenting Agreements

Written agreements are good business practice. Freelancers and clients can avoid disputes based on misunderstanding by summarizing conversations in writing, noting the terms discussed. A simple letter of agreement, whether on paper or in electronic format, usually serves this purpose, and such a letter is itself all or part of the parties' contract and so is legally binding.

Writing out the terms of agreement fixes more clearly the expectations of both parties and also focuses their attention on issues they might otherwise fail to notice. For example, if a client hands an incomplete manuscript to a freelance copyeditor and is unsure of the date on which the manuscript's author will deliver the remaining portion of the project, the freelancer might want to raise the possibility of charging a reservation fee for the remaining portion or of subcontracting the remainder of the project if the freelancer's schedule makes timely completion difficult. Such contingencies are best documented in a project's early stages, before any problems arise.

Up-front discussions help each party comprehend the other's expectations and avoid disputes. Several discussions — and corresponding documentation — might be needed before all terms are covered, but as long as none conflicts with another, all are part of the contract. Further discussion, of course, can take place at any point in the project, as new issues arise.

A contract is valid if both parties accept its terms. A contract may stipulate that both parties accept the terms of the contract if neither rejects or amends the agreement by a given date. One practice that clarifies acceptance of a contract's terms is to have each party sign and date a copy of the agreement to verify that all concerned have read it. A freelancer can verify an agreement by mail by asking the client to sign and return a copy of the contract so that each has the terms of agreement summarized and on file. Another common practice is to cite a date by which the contract will stand unless one or more parties seek to amend it.

Even the most well-considered contract, however, can require renegotiation. Changes are easily incorporated into the contract as long as both parties agree to the revisions. Any amendments must be approved by both parties. Many amendments, such as schedule changes and adjustments in the freelancer's fee, are typically necessary for long-term projects.

Resolving Conflicts

A contract is breached when one party fails or is unable to meet its terms. A breach of contract by one party does not invalidate the contract or free the other party from the obligation to perform unless the contract so provides. The parties can anticipate problems resulting from breached contracts by including in the termination provisions a contract term stating that a material breach of the contract by either party excuses further performance by the other party unless or until the breach is remedied. (A material breach of a contract is a failure to meet a term that is essential to the agreement.) The same term should indicate that failure to pay invoices is a material breach, usually with the exception of amounts less than $100 and periods less than twenty days after the invoice date.

Most breaches of contract can be resolved through renegotiation. If both parties address any differences promptly, questions about breach of contract remain limited, and both freelancer and client can avoid further problems.

Discussion between Freelancer and Client. The first step in resolving any conflict is discussion between the freelancer and the client. Misunderstandings sometimes arise when one party is unaware of a change in the project that necessitates a change in the terms of the contract. For example, a client and a freelance indexer agree to a deadline for a completed index; however, the page proofs are delivered to the indexer two weeks after their due date. The client may be unaware of this; the freelance indexer and the client must discuss the late delivery of the page proofs and the effect this will have on the delivery date for the index. In most cases, renegotiation can resolve any difficulties if both parties are willing to address concerns and acknowledge the project's requirements.

Legal Remedies. A variety of legal and quasilegal remedies is available when a dispute cannot be resolved by a freelancer and a client. Mediation and arbitration are two possibilities. Mediation is a process by which both parties discuss the dispute with an impartial facilitator, who then assists them in reaching an agreement. Arbitration is a process by which both parties submit their dispute to one or more impartial arbitrators, who then render a final and legally enforceable decision. Arbitration is quicker, less formal, and less expensive than going to court. Both parties, however, must agree in advance to accept the arbitrator's decision. The freelancer and client can agree in their initial contract that any unresolved disputes should be resolved through arbitration, or they can decide on this course of action after a dispute has arisen.

Other legal remedies involve lawsuits, which all parties generally prefer to avoid. Freelancers who are owed relatively small amounts of money by clients who do not make payment can sometimes use small claims court, where they can have cases decided by a judge and without the advice (and expense) of an attorney. Procedures for small claims court vary from state to state, however, and each state has an upper limit, above which a freelancer is required to use the civil court system, generally with the advice of an attorney.

For both freelancers and clients, court action is a last resort. Both parties lose valuable time and incur expenses in the course of a lawsuit. Although legal action is occasionally necessary when other measures have failed, the costs — in time, money, and frustration — of bringing a lawsuit to court frequently outweigh the possible gain.

Contract Checklist

A complete contract covers as many issues as possible. No one ever foresees every necessary contract term, but the following checklist can help freelancers and clients to be sure they are addressing key issues.

  • names and contact information of all parties involved
  • date on which the contract takes effect
  • status of freelancer (contractor versus employee)
  • date(s) on which the project or parts of the project are due to both freelancer and client
  • description of freelancer's tasks
  • schedule by which the project is planned to proceed
  • location at which work will be performed (freelancer's office vs. client's office)
  • party responsible for purchasing supplies, equipment, and additional services
  • basis of freelancer's compensation (project fee, hourly rate, or other agreed-upon arrangement)
  • amount of freelancer's compensation
  • billable expenses
  • schedule of billings and payments
  • interest charges for late payment
  • applicability of reservation fees, rush fees, late fees, or cancellation fees
  • conditions in case of project termination
  • copyright holder for final publication
  • special considerations: equipment needed and any reimbursement for equipment, prospect of project's interruption, possibility of subcontracting a portion of the project
  • printed credit listing the freelancer's name in the final publication
  • complimentary copy or copies of the final publication

Contents | Chapter 1 | Chapter 2 | Chapter 3 | Chapter 4 | Appendix A | Appendix B

 

[ back to top ]

:: Site design & development by Formandsubstance and Leximation Inc.