Tricky business ethics & legal issue
Thread poster: Peter Sass

Peter Sass
Germany
Local time: 00:41
Member
English to German
+ ...
Mar 11, 2011

Dear colleagues,

I'd like to ask you for advice on a quite unpleasant matter. I've been collaborating as subcontractor to a colleague who received a large translation assignment from an agency. Now halfway through the work this colleague has become completely unavailable - not answering phone calls nor emails or Skype messages, despite being online. This does not just concern me, but also another agency where on Monday he failed to deliver a job without giving any notice nor answering messages since. I don't know what the background is to his behaviour, but I know of one more instance where he failed to deliver work in this way, so I assume he simply tends to be utterly unreliable.

As it is apparent to me that he is not going to deliver his part of the common project before the deadline next Tuesday and therefore payment by the agency will most probably not materialise, I wonder what I should do about the situation, not least to have at least a small chance to get paid for my own work so far.

Questions:
Should I inform the agency (which I never had contact with) about the prospect of non-delivery, which I think would only be fair to them?
Would it be realistic and appropiate to ask them for payment of my work so far (about 10% of the overall volume), even though I'm not their contractual partner?
Or would such a move constitute a breach of contract against the colleague, maybe leading to job cancellation by the agency and my loss of payment claim against him, not least as I can't be absolutely certain, under the circumstances, about whether and to what extent he may be (not) able to deliver the job or part of it?
Or else what would you do in my position?

I'd be most glad to receive your advice about this matter, since I've never had deal with anything like it!

[Bearbeitet am 2011-03-11 17:07 GMT]


 

Anton Konashenok  Identity Verified
Czech Republic
Local time: 00:41
English to Russian
+ ...
Bad situation Mar 11, 2011

I see two problems here.
One, many agencies explicitly prohibit subcontracting, so if it becomes known, big troubles are on the way, possibly even a lawsuit for breach of confidentiality.
Two, even if subcontracting was allowed (or, more precisely, not prohibited), by definition of subcontract relationships, there is no direct link between the agency and you. Your colleague took out this job and committed to delivering it by the given deadline for a given amount of money. You, as a subcontractor, are only responsible to him. So, don't even hope to get paid by the agency, except as a very, very kind gesture of good will.
On the other hand, even if the agency cancels the contract and pays nothing to your colleague, his obligation to pay you for the subcontracted work still stands, and can be enforced through a court.

[Edited at 2011-03-11 16:12 GMT]


 

Peter Sass
Germany
Local time: 00:41
Member
English to German
+ ...
TOPIC STARTER
Thanks a lot.. Mar 11, 2011

..Anton, for your assessment of the situation. Your point is certainly valid and part of what makes me worry here. In fact the agency explicitly prohibits subcontracting without their knowledge and written permission, yet in the particular case the volume was such that it was clear from the beginning that no single translator could handle it responsibly within the agreed timeframe. Still, I guess your advice is sound not to risk any big trouble on the grounds of breach of confidentiality - even though this means that they cannot be warned of the mess beforehand.
Another question (to whoever would like to answer) that I'm not quite certain about is whether under the circumstances I have a right to stop translating and only deliver the work done so far, in order to limit the prospective damage and on the grounds that the other translator shows these signs of unreliability?

[Bearbeitet am 2011-03-11 17:03 GMT]


 

Sheila Wilson  Identity Verified
Spain
Local time: 23:41
Member (2007)
English
+ ...
Cover yourself Mar 11, 2011

Peter Sass (M.A.) wrote:
Another question (to whoever would like to answer) that I'm not quite certain about is whether under the circumstances I have a right to stop translating and only deliver the work done so far, in order to limit the prospective damage and on the grounds that the other translator shows these signs of unreliability?


For that part of your problem, I would imagine that if you make every effort to contact the translator, announcing your intention in writing, then there could be no justification for accusing you of not doing your job.

But that is only what I believe to be true, I could be mistaken. My sympathy - it sounds a really difficult situation.


 

Laurent KRAULAND (X)  Identity Verified
France
Local time: 00:41
French to German
+ ...
As I would have put it... Mar 11, 2011

Sheila Wilson wrote:

Peter Sass (M.A.) wrote:
Another question (to whoever would like to answer) that I'm not quite certain about is whether under the circumstances I have a right to stop translating and only deliver the work done so far, in order to limit the prospective damage and on the grounds that the other translator shows these signs of unreliability?


For that part of your problem, I would imagine that if you make every effort to contact the translator, announcing your intention in writing, then there could be no justification for accusing you of not doing your job.

But that is only what I believe to be true, I could be mistaken. My sympathy - it sounds a really difficult situation.


act according to what seems the best way to protect your interests. I would not exclude contacting the agency at short notice.


 

Ingmar Michael Bail  Identity Verified
Germany
Local time: 00:41
Member (2010)
Dutch to German
Advise them. Mar 11, 2011

Dear Peter,

I'm sorry to here that!
If I knew that my colleague had been unreliable before, if I had not signed a statement like 'contacting the agency directly is forbidden' in the contract between me and that colleague and I had the right 'gut-feeling' about it, I'd advise the agency.
Not so much in hope getting payed by the agency (since they wouldn't be obligated to do this - as Anton already said-) but to show them that there are still fair and reliable translators out there who have certain moral standards when it comes to promises and businesses relations.
Even if subcontracting was forbidden for this job, why would you have to care? This is your colleague's problem then.
The only thing you are doing is damage control ,so to speak, by advising them asap.

Concerning your payment I wouldn't worry too much, as long as your colleague is based in Germany and you have a contract with him. Then, according to German law, you will get your money.
Even if legal action might be necessary in this case. I guess a lawyer would be a very good idea in this case.
Apart from the question whether to advise the agency or not, as soon as you have finished your job according to the contract between you and your colleague or as soon as you know that the project has been canceled by the agency, you should send him the bill and wait for him to pay. If he fails to pay -> standard routine for non paying customers/contractors.

That would be my course of action. If it is the right one, I can't guaranty.

Keeping fingers crossed for you!
Best regards,

Ingmar


 

Kaiya J. Diannen  Identity Verified
Australia
Member (2008)
German to English
Agree on this point Mar 11, 2011

Ingmar Michael Bail wrote:

...if I had not signed a statement like 'contacting the agency directly is forbidden' in the contract between me and that colleague and I had the right 'gut-feeling' about it, I'd advise the agency.

...but to show them that there are still fair and reliable translators out there who have certain moral standards when it comes to promises and businesses relations.

Even if subcontracting was forbidden for this job, why would you have to care? This is your colleague's problem then.

The only thing you are doing is damage control ,so to speak, by advising them asap.

I would never advise violating a contract, especially when it comes to subcontracting or confidentiality, etc.. But I agree with Ingmar here - if *you* were not the one that signed an agreement not to subcontract, you are not the one who has violated any provisions to that effect. They may (or may not) have given the primary translator permission to subcontract - or expressly forbidden him from doing so - but unless you were directly provided with this information by the agency, you are not the one it concerns.

Again, agreeing with Ingmar, contacting the agency is (unfortunately) not a matter of getting paid but of potential damage control, for both you and the agency. In short: If I were the agency and my translator "disappeared", I would want to know about it, preferably with as much notice as possible!

I hope the situation works out better than how it sounds now, do let us know...


 

opolt  Identity Verified
Germany
Local time: 00:41
English to German
+ ...
Get him moving Mar 11, 2011

Without touching all the issues at stake here, what I would do (and quickly!), is to "force my way through" to get into contact with him. That should be your top priority, for practical purposes and also for legal reasons.

So, for instance, you could write a registered letter of some sort, contact some person living nearby (ask an acquaintance or another Proz.com member to do that for you, making sure he's prepared to be your witness) who can go there, ringing at his door so the guy shows up and explains the situation, or whatever -- or maybe there's even the possiblity that a lawyer might write a nice letter for you (though I'm really just speculating here).

All these proposals have their own limitations of course, especially if he is a resident of another country, but maybe it could provide you with some hard proof and/or witnesses that your "friend" was not available at the given time, denied receipt of a written communication, etc., thus violating the spirit of your contract with him.

As I see it, without such proof you might have a difficult time getting your money from him if you don't deliver the translation as agreed.

Now, given that the deadline is quite close, it may be too late for that, so I would deliver the complete translation on CD or DVD and send it as a registered letter to his door (if viable). If you don't do that, it will be difficult to prove that you really delivered.

If and when all of the above fails, you can still consider contacting the agency some time afterwards (next day), but personally I would be rather hesitant to do so (unless you have your own direct relationship with them). I believe there's not much to be gained from this and it could become quite messy, at least if the agency is bigger than, say, 3 employees. Most likely, they will be suspicious of you, no matter what you explain to them, and there's no guarantee that they will accept your work and even pay for it, even if you contact them early on.

Remember, you don't really know what's happening with your collegue. Are you absolutely sure he's been online? I mean, someone else could be using his accounts (Skype or whatever) while he himself is terribly ill or something. Right now, you probably can't prove anything.

Mind you, I'm speaking from a German (legal) perspective -- even though, of course, "I am not a lawyer", as they sayicon_smile.gif

So, to sum it up: you need a reliable channel of communication with him both to get proof of his inaction and to deliver your part (or just either of the two).

That's just is what my common sense tells me.

PS Some very basic advice on how to get watertight proof on communications in Germany:
http://www.test.de/themen/steuern-recht/meldung/Beweis-fuer-ein-Schreiben-Fax-Mail-Brief-1512146-2512146/

(Also, pls. note that combining several of these methods might increase the likelihood of a court deciding in your favour -- but there's not guarantee.)

(Edited several times for clarity.)


[Edited at 2011-03-11 22:29 GMT]

[Edited at 2011-03-11 22:32 GMT]

[Edited at 2011-03-11 22:49 GMT]

[Edited at 2011-03-12 03:21 GMT]


 

Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 00:41
Member (2005)
English to Spanish
+ ...
"Roma traditoribus non premiae" Mar 12, 2011

As in so many moments in life, ethics is at stake here.

In theory, common sense says that you should contact the affected agency and help them overcome a certain failure of delivering the job to their end customer. But common sense is not always the most ethic way of dealing with things, and is very very often incompatible with law.

Now, it is a fact that you just happen to know the name of the agency and that apparently this person is not a reliable partner, but it is this person the one you had an agreement with. Confidentiality is a must in our business, and contacting the agency would not be an option in my opinion. If you did... wouldn't the agency fear that you feel free to contact whoever you wish in a critical situation? Not good publicity for you. "Rome does not pay traitors", even if they eventually benefited from your action.

I would follow opolt's advice: stop working in the project and use a registered letter asking this person to contact you immediately about continuing the job or not, and stating that you have stopped translating due to the lack of response by other means.

If this person does not respond... I am affraid the 10% you have done already will be lost time. Maybe next time you work as subcontractor to another colleague you want to ask for a payment in advance of part of the job, which is a good way of keeping unreliable partners away.


 

Laurent KRAULAND (X)  Identity Verified
France
Local time: 00:41
French to German
+ ...
Purpose of a registered letter? Mar 12, 2011

Tomás Cano Binder, CT wrote:

(.../...)
I would follow opolt's advice: stop working in the project and use a registered letter asking this person to contact you immediately about continuing the job or not, and stating that you have stopped translating due to the lack of response by other means.

If this person does not respond... I am affraid the 10% you have done already will be lost time. Maybe next time you work as subcontractor to another colleague you want to ask for a payment in advance of part of the job, which is a good way of keeping unreliable partners away.


I guess that, in the context given by Peter, the purpose of sending a registered letter is merely a matter of formalism (self-protection) more than anything else. And the looming deadline does not much to make this option efficient in terms of delivering the job.

Anyway, the main problem I see after having read Tomás' post is one's own position about confidentiality being an absolute or not.

ETA: am I the only one to see that such a registered letter is the best proof that a contractual relationship which should never have taken place was nevertheless established?

[Edited at 2011-03-12 09:48 GMT]


 

Sheila Wilson  Identity Verified
Spain
Local time: 23:41
Member (2007)
English
+ ...
Contact agency after delivery deadline? Mar 12, 2011

I think I might want to contact the agency immediately after the deadline has passed. Not before, really, as you really have no right to. But I would think it would be sensible to contact them afterwards, saying "Look, I've done this translation for X and ultimately it's for you. I can't deliver it to him as I can't contact him. Are you interested in accepting it directly from me?"

Once he's missed his deadline with them then I don't think loyalties etc come into it. It's down to damage limitation for everyone involved and the agency may be willing to pay you then for the part you have done. I imagine that they will otherwise have to have it all translated as fast as possible to try to honour their contract with their client.


 

veratek
Brazil
Local time: 21:41
French to English
+ ...
a clarifying question Mar 12, 2011

I didn't understand part of what happened.

You wrote:
This does not just concern me, but also another agency where on Monday he failed to deliver a job without giving any notice nor answering messages since.

How did you find out about this? Are you privy to several of his projects with other agencies?


 

Peter Sass
Germany
Local time: 00:41
Member
English to German
+ ...
TOPIC STARTER
Further developments Mar 24, 2011

Dear colleagues,

As some of you expressed interest in how things would evolve, here's my account. I finally decided on that Friday not to contact the agency, mainly based on the overall (rather pragmatic) conclusion that my message to them would not make a big difference, not least due to the fact that I couldn't give them a definite message (about whether the translation would be delivered or not) and they might not know what to make of it anyway (would they believe an unproven assumption from someone they didn't even know, and even if so, would this enable them to act on this assumption and cancel the assignment to the other translator merely on the ground that he was not available??).

In the end, when I spoke to the agency on the delivery date it turned out that I could have contacted them without any problems, as they were aware of a 2nd translator being involved (which I hadn't known). On that same day the other translator had finally contacted me and come up with a rather dubious story about some personal reasons why he had been unavailable and incapable of producing (his part of) the translation. Fortunately, the agency took me on board officially to do the remainder of the job in short time, with the help of other translators, so I should get paid by them.

So there was a kind of a happy ending - even though I learnt a lesson about the limits of trust in this business.. Nevertheless, it felt very reassuring to get all your advice on this matter, thanks a lot to all of you! I especially appreciate that you take the time and effort to give advice to others even though there are no Kudoz points to earn.. This has well restored my belief in humanityicon_wink.gif

All the best,

Peter

[Bearbeitet am 2011-03-24 13:33 GMT]


 


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