Contract Basics: Sign Before You Sing
As a professional vocalist you need to be a businessperson as well as an artist. It pays literally—for you to be knowledgeable about basic contract principles and to be comfortable with the process of contract negotiation. Contracts don’t have to be scary, and singers need not associate negotiations with the onset of unpleasant physical symptoms. Knowledge is an excellent alternative to antacids.
Let’s see how much you know about contracts.
True or False? All contracts must be in writing. (10 points)
Name three essential elements of a valid contract. (5 points each, 15 points possible) Name the first section of the contract you should review, before any other. (10 points)
True or False? Contracts are governed by the law of the state in which you reside. (5 points)
How long can you wait to sue for breach of contract? (5 points)
True or False? If one party breaches, the other party must go to court to have the contract enforced. (5 points)
We’ll talk about your score at the end of this article. Now let’s analyze the test questions, one by one.
1. False. Although certain types of contracts need to be in writing, most do not. Verbal agreements are perfectly legal and enforceable. You can enter into a contract by virtue of your words and actions, as well as by signing your name: so be careful about making promises in “casual” conversations! Now, having said that a contract doesn’t always have to be in writing, allow me to suggest—strongly—that it should be in writing whenever possible. Live by the credo, “sign before you sing,” and over the course of a career you’ll save yourself a lot of grief.
2. Formation of a contract requires a valid offer; a valid acceptance; and legal “consideration.” For purposes of illustration, let’s assume that a presenter has invited you to perform. The presenter’s offer should be clear and as specific as possible. It should set forth in detail the contractual responsibilities of each party, and it must recite the “consideration” that each of you will provide (see discussion, below). Your acceptance, too, must be clear and unambiguous. If you propose different terms, you have not accepted the offer: You have made a counteroffer, and there is no contract until the presenter accepts your new terms. In most cases silence does not constitute acceptance, unless in some way you have already reaped the benefits of the contract. In most cases, too, only you can accept the offer; a third party cannot accept on your behalf (although there are exceptions for agents.) To be enforceable the contract must also provide for legal consideration. In general, this means that you are required to provide something of value to the other party (e.g., you sing), and they are required to provide something of value to you (e.g., they pay). What each of you provides to the other is called “consideration.” The courts typically do not concern themselves with the adequacy of consideration as long as both parties have entered into the contract freely and enjoy relatively equal bargaining power. In other words, if you freely agree to do a 4-hour gig for $1.50, that’s your choice and the $1.50 counts as legal consideration.
3. Most union and other “boilerplate” presenters’ contracts will contain a “definition of terms” section. This is an extremely important and frequently overlooked section of the contract. If there is any word in the contract you do not understand— and I mean any word—look for it in this section. If it’s not there, either consult an attorney or insist that the word and your understanding of its definition be added to the “definitions” section of the contract. (Hint: if you can’t articulate a word or phrase’s definition to someone else, you don’t really understand it. DO NOT PROCEED until you have obtained clarification.)
4. False. Do not assume that the laws of your home state will apply to your contract. Be sure and check what I call the section of the contract (e.g., “this contract shall be governed by the laws of the state of ….”). Contracts are uniquely creatures of state law, and the laws vary dramatically from state to state. In order to understand your rights, therefore, you must know which state’s laws control your contract.
5. Answer: It depends on which state’s laws control your contract! You can’t wait 50 years to sue a presenter who doesn’t pay. The time within which you must commence legal action is set forth in a law called the “statute of limitations.” If you are the aggrieved party and you bring legal action after the limitations period has expired, your case will be dismissed with dizzying alacrity. Differences among state limitations periods can be considerable: One state might give you 6 years to sue, while another requires action within 3 years, 1 year or even six months! Even within the same state you’ll often find different limitation periods for seemingly similar types of actions and circumstances. In short, limitations are tricky. If you consider yourself aggrieved and are contemplating legal action, first identify what’s at stake. If it’s more than you can afford to lose, hire a lawyer. And make the call sooner, rather than later.
6. False. There are many ways to remedy an alleged breach of contact short of going to court. Being reasonable, putting yourself in “the other guy’s shoes,” and talking it out with the other side is always a good place to start. If that doesn’t work, however, mediation and arbitration are considerably less expensive alternatives to litigation. Some contracts even require such “alternative dispute resolution.” If you do end up in court, there are a variety of remedies available for breach of contract, depending on your circumstances. Courts can order: money damages; specific performance (i.e., making the other party do what they said they’d do, when money damages are neither adequate nor appropriate); and reformation (i.e., reforming the contract to correct honest mistakes and mutual misunderstandings). In the event of fraud and other unsavory behavior, courts can also impose remedies that nullify the contract and restore the parties to their original positions.
Now that we’ve discussed the questions, let’s go back to your test scores. Add up your points. Did you score between 0 and 20? Between 20 and 35? Between 35 and the top score of 50? Well, guess what? It doesn’t mean a thing.
If you were expecting a prize for stellar performance, next time get it in writing.
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