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Can I breach a contract if the client breachs it first?
Thread poster: Claudia Iglesias

Claudia Iglesias  Identity Verified
Chile
Local time: 11:49
Member (2002)
Spanish to French
+ ...
Sep 12, 2006

I have signed a contract that compels me to translate chapters for a TV series (for doubbling). I have to send them as soon as they are ready but I must invoice every 20 chapters, which represent something like 40-50 days of work (although according to the client's planning schedule I should do that in 20 days). Since the beginning I have been suffering with this project, which I accepted because it sounded interesting, new, funny and rewarding. In fact it's all the opposite. I have been outsourcing because I must respect the planning schedule, and the earnings are poor. But I'd better say "would be poor", because the client hasn't paid yet for the first batch of 20 chapters. This should have been done at the end of August and I have been sending e-mails asking for the new planning schedule, because there have been changes, and for the date of effective payment, with no answer until today. I received the new planning schedule, but there's no comment about the payment.

I already entered their name in the BB, I didn't make an entry yet, but my concern is that I'm suffering with this project, which should last until November. I imagine that the client would be in trouble if I tell him that I don't want to fulfill my contract and will stop at chapter # xx, but I also wonder why would I put myself in client's shoes and he doesn't do the same for me? I already paid some of the outsourced work and it seems to me that it's only correct and the right thing to do.

I'm not asking for support telling me just to let them down, I'd like to know the legal consequences if I breach my contract.

Thank you

Claudia


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Claire Titchmarsh  Identity Verified
Local time: 17:49
Italian to English
+ ...
Depends what the contract says Sep 12, 2006

Hi Claudia,

I am not a lawyer but a paralegal. So perhaps a more expert colleague can shed extra light, but my feeling is this - it's impossible to say for sure what your remedies might be without knowing what you've signed. But often, payment terms are essential conditions of the contract so if they are breached the contract is automatically terminated. Are there any undertakings from you or from the agency?

In practice I'd say it's highly unlikely the agency could have any comeback against you if you stopped work now (if they haven't got any money to pay you, they haven't got any money to pay a lawyer and sue you, have they?? It would be far easier for them just to pay you to make sure they get the rest of the job finished). Why don't you point out the breach of contract to them and say you will not continue working until it is remedied? It will probably do the trick.

Good luck


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Samuel Murray  Identity Verified
Netherlands
Local time: 17:49
Member (2006)
English to Afrikaans
+ ...
I'd say, keep going unless you're certain Sep 12, 2006

Claudia Iglesias wrote:
...because the client hasn't paid yet for the first batch of 20 chapters. This should have been done at the end of August...


So they're less than two weeks late in payment. That's no cause for alarm. Don't stop working until they're about a month or two behind with payments. You're a professional -- behave like one regardless of your client's behaviour. But keep sending them reminders.

I'd like to know the legal consequences if I breach my contract.


That really depends on the contract conditions, but keep in mind that although laws usually allow a margin of late-payment, they rarely allow for late-delivery. I don't know about Chilean law, but in South Africa, a freelance translator owns the copyright of his translation, and if a client use the translation in a publication without paying the translator the agreed amount, then the client is guilty of beach of copyright, which is a criminal offence (for what it's worth).


[Edited at 2006-09-12 14:13]


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Heinrich Pesch  Identity Verified
Finland
Local time: 18:49
Member (2003)
Finnish to German
+ ...
Remind them of your copyright, if necessary Sep 12, 2006

This is part of the dangers of outsourcing. But if its only a question of weeks you should go on. A nightmare, if you concentrate on one job and the client does not pay in time.
Regards
Heinrich


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Tina Vonhof  Identity Verified
Canada
Local time: 09:49
Member (2006)
Dutch to English
+ ...
Hostage Sep 12, 2006

Hello Claudia,

I would respond to the client to say "Thank you for sending me the new planning schedule. I will deliver the documents on - fill in the date - , provided that by then I have received payment for the first delivery, as specified in the contract."

That way you are not breaching the contract but you make it clear to the client that they need to fulfill their part of the contract in return. In a sense you are holding the next batch of documents hostage until the client pays.

Good luck with it!

[Edited at 2006-09-12 15:52]


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Claudia Iglesias  Identity Verified
Chile
Local time: 11:49
Member (2002)
Spanish to French
+ ...
TOPIC STARTER
Thanks for your answers Sep 12, 2006

In fact, I know that it's too early to take decisions, but the fact that they don't answer to my e-mails or phone calls makes me feel really uncomfortable and I'd like to stop on time, even if it means that I have translated material that I haven't sent to them that will never be paid.

Waiting for a month or two of delayed payment means keep working for them until they owe me something like €6,000, while for now they "only" owe me 2,000.
By the way, my client, which is a direct client, is based in France.

The problem is not outsourcing at all, when I outsource I take the responsibility for it. I take the risk of having to pay without being paid. My problem really sticks to the relationship between the client and me.

The contract is very unprecise for both, delivery date is according to the planning schedule and payment should be at the end of the month or next 15th.

Claudia


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Angie Garbarino  Identity Verified
Spain
Local time: 17:49
Member (2003)
French to Italian
+ ...
as far as I know yes Sep 12, 2006

According to the Italian law (art 1540 if I am not wrong) Yes

If they didn't pay on time, they breach first and if they brech first, you are not obliged to respect it,

but I don't know if in other countries it is the same, I think it depends on the law of the country governing this contract.

If client is based in France may be you can ask in the French forum



Good luck

Angioletta

[Edited at 2006-09-12 16:48]


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nettranslatorde
Member
Russian to German
+ ...
Hello Claudia Sep 12, 2006

Tina Vonhof wrote:

I would respond to the client to say "Thank you for sending me the new planning schedule. I will deliver the documents on - fill in the date - , provided that by then I have received payment for the first delivery, as specified in the contract."

That way you are not breaching the contract but you make it clear to the client that they need to fulfill their part of the contract in return. In a sense you are holding the next batch of documents hostage until the client pays.



[Edited at 2006-09-12 15:52]


I would go with Tina's suggestion. That's exactly what I did one time when I had to translate a book. Guess what? It took them only one more day to pay me, and I was able to fully concentrate on the rest of the job.

Good luck!

Kerstin


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ViktoriaG  Identity Verified
Canada
Local time: 11:49
English to French
+ ...
No matter who breaches it first... Sep 12, 2006

...once there is a breach, the contract is void.

This means that you don't have to respect it.

Up to you now whether it is worth for you to walk down that lane - but in any case, stick up for yourself... and the people you outsourced the work to. Even if your contract with your client was breached, the contract with your translators is still valid - and this could backfire at you.

All the best!


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Angie Garbarino  Identity Verified
Spain
Local time: 17:49
Member (2003)
French to Italian
+ ...
Exactly Sep 12, 2006

Viktoria Gimbe wrote:

...once there is a breach, the contract is void.

This means that you don't have to respect it.


All the best


I totally agree


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Parrot  Identity Verified
Spain
Local time: 17:49
Member (2002)
Spanish to English
+ ...
The point is Sep 12, 2006

Claire is right:

Claire Titchmarsh wrote:

In practice I'd say it's highly unlikely the agency could have any comeback against you if you stopped work now... Why don't you point out the breach of contract to them and say you will not continue working until it is remedied?


However, a legal case (in the event you decide to file one) is always stronger when there is no proof of breach on your side. (Unfair as it sounds, this is the old argument that before you can sue for your money back you have to pay, even if you were short-changed or no guarantees can be presented that you'll ever get what you paid for).

I'm not saying this is the soundest advice (I'd check for solvency first), but it's what magistrates would consider.

Good luck!


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Trevor Butcher
Local time: 17:49
English
void contracts? Sep 13, 2006

Viktoria Gimbe wrote:

...once there is a breach, the contract is void.

This means that you don't have to respect it.


All the best!


I would not be so certain, just because one element is in breach does not guarantee that the whole contract is void. I suppose it depends on your local laws.

Trevor


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ViktoriaG  Identity Verified
Canada
Local time: 11:49
English to French
+ ...
Trevor, I think the definition of a binding contract speaks for itself Sep 22, 2006

Although you are right in saying that local laws may differ, I believe - and I am sure most see it the same way - that a contract, when it is binding, is a ticket that entitles you to something AS LONG AS its clauses are respected. It is basically a transaction that says "I give you X and in exchange you give me Y". If one of the parties doesn't respect their clauses, the contract is breached - which really means that it's void. That's what a contract is by definition. However, I would consult someone more knowledgeable than a translator on such issues - you never know...

Maybe the party who respected the contract should first let the other party (the one who breached) know that there's been a breach (by way of registered mail?) before refusing to honor their part of the contract. That could make your case more credible, as you display a collaborative behaviour.

Finally, I certainly would not keep going with a contract that's been breached. Accepting such a breach can be perceived as an acceptance of the contract not being respected, a bit like surrendering or agreeing to let go of a clause - which may also legally entitle the other party to not respect other parts of the contract. This chips away at the guarantee of payment and other terms agreed upon. Dangerous!


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xxxAdrian MM.
Local time: 17:49
French to English
+ ...
Accepting a repudiatory breach in English law Sep 26, 2006

Everyone has made good points, inc. copyright. A new planning schedule is in fact a new contract or requires a contract rider.

You say neither if you do have a contract. nor if it provides for instalment i.e. stage payment or what is the governing law.

If it is Eng. law, then Claire is right, albeit the contract is not terminated automatically. If you are the innocent party - see below - you are allowed to take steps to terminate and claim on a quantum meruit - what s/he deserved basis - or quantum valebat - what the job was worth, as a valuable benefit has been conferred on the client.

Contract repudiation: you can *affirm* the contract or choose to *rescind* on the basis you are the innocent party and the client is the guilty party. Rescission has to be communicated in no uncertain terms. If this is chosen, the discharge is final and any contract terms cannot be relied on (Eng. case of Briggs v. Oates 1991).

If you affirm, the contract remains alive. The client has to pay for the work done.

However, IF Eng. law does apply, you need to be careful that you are entitled to 'repudiate' your end and stop working if the client has also 'repudiated'. If you are not entitled to, this will send you into breach. Upshot: go & see a Solicitor/lawyer if the amount involved is worth it.

[Edited at 2006-09-26 08:02]

[Edited at 2006-09-26 08:42]


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Claudia Iglesias  Identity Verified
Chile
Local time: 11:49
Member (2002)
Spanish to French
+ ...
TOPIC STARTER
Hostage worked! Oct 5, 2006

(for now)

Hello dear all

I didn't know how to handle the situation so I didn't do anything, just wait. I stopped sending emails, trying to call them...until they woke up.

Last Tuesday they called me to explain that they had problems because they had to face extra expenses and they had to talk to their clients in order to state who would afford them before paying anything. The problem was solved and they had sent a bank transfer at the end of the week before, but their bank had a bank holiday on Wednesday (last week, I wondered which holiday it could be in France but didn’t try to see if it could be true or not), and they promised that by the end of the week I’d have my money and they were even paying more than the invoice amount, for the next chapters.
I explained to them that as it was the first time we worked together I had no reason to trust them (but it sounded more diplomatic in French) and they said they understood my position. They asked for one urgent chapter and I promised to start sending all the others two by two, every day.

But...Wednesday, Thursday and Friday passed and no money in my bank. So I didn’t send anything except the urgent one. Yesterday (Wednesday, one week later), they called me and they asked me why I hadn’t been sending the files and I answered that I hadn’t received the money. They said that I had been paid the week before and that it had been taken off from their account, so I should have it. Last night I had the money in my account, they really paid more than the invoiced amount (!!!) and now I must work day and night to catch up the delay.

In summary, I wonder whether I can really trust them, they lie a lot, but for now they need me. I wonder how it will work for the last chapters when they won’t need me any more (I deliver the translations before being paid, as usual). We’ll see...

Thanks for all your advice.

Claudia


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