"Freelance contracts": will they stand up in a court of law
Thread poster: Jason Willis-Lee

Jason Willis-Lee  Identity Verified
Local time: 05:03
Spanish to English
+ ...
Jul 7, 2006

Hi,

I have been asked to sign a "freelance contract" for a regular client and would like some advice. Perhaps this topic has been discussed before but a quick forum search led me to post this topic. The contract contains clauses relating to quality, payment conditions, expenses, cancellation of orders, etc, etc.

I have always thought the idea of freelancing is that there is no contract since one is not an employee and offers exclusive dedication to no-one. I see this as the agency trying to get the upper hand over relationships with freelancers by setting down a "contractual" agreement that may well not stand up in a court of law if it ever got there.

Any experiences or thoughts from colleagues on this will be much appreciated.

All the best,
Jason.


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xxxUSER00230
United Kingdom
Local time: 04:03
German to English
depends Jul 7, 2006

It depends on what the contract says of course, and on Spanish law.

But if it was the UK, and I am sure it is similar in Spain, I would see it as follows.

Any job you accept from a client is already a "contract". It doesn't matter whether there is a written contract or not, it is implicit. The contract is that you will deliver the translation on the agreed terms to the client. Implicitly, the client can expect a professional job, "fit for the purpose" or whatever the phrase used in the legislation/precedent happens to be.

Now, what exactly a professional job involves in terms of translation is something that lawyers could argue about for eternity, but if it ever came to court it would be resolved on a "reasonable man" basis, i.e. what a reasonable observer would expect in reasonable circumstances.

Therefore anything in your contract is likely to be simply setting out these implicit terms, like that you will deliver the translation at the agreed time in the language requested. You will have the option to take on work or reject it, because if it says that you have to take on work it could be interpreted as an employment contract and the agency does not want that.

Of course you need to read the other clauses. If it said they would make a 50% deduction if the translation was 5 minutes late it mightn't be worth signing it, but in any case a clause like this could potentially be challenged in court as being unreasonable, whether or not you had signed it.

I'm not a legal expert but I would say that a contract with an agency doesn't have a great deal of point, as there is not much that you can add to the implicit contract, which is that they will get a fit for purpose job. By the same token there is no harm in signing them since they just set out in black and white what was already the case anyway.

best regards


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Derek Gill Franßen  Identity Verified
Germany
Local time: 05:03
German to English
+ ...
"Freelance contracts" Jul 7, 2006

I basically agree with everything that Bill wrote. The point of freelancing is not an apparent lack of contracts (actually, almost every assignment is done on the basis of a contract, be it written or not), but rather the flexibility and control freelancing affords: As a freelancer you can choose when to work and with whom. You also have more control of what assignments you do, i.e. you are your own boss.

In fact, there is usually less bureaucracy, i.e. dealing with contracts, invoices and the like, if you are dependently employed. Such details (and the amount of work they cause should not to be underestimated) are then usually performed by someone else in the company. All you (usually) have to do is translate.

As far as your - and any - freelance contract is concerned, I would be wary. Probably the best way of finding out if it is okay is to run it by a lawyer you trust. That way, if something does happen to go wrong, you might have a chance to recover from your lawyer (assuming, of course, the lawyer really did make a mistake).

Most contracts just reiterate what already "goes without saying," as Bill mentioned above. But use your common sense: If some part appears unfair or unreasonable, then it probably is. I'm not sure I would take the risk that some unreasonable clause might be enforced by some court (well actually, I probably would because that's what I do, but otherwise I wouldn't necessarily recommend taking that risk).

On the other hand, do not be afraid of negotiating with whoever would like you to sign any agreement - that is the whole point of concluding a contract. Both parties should have their say in the matter. It is really not how it seems: "Just because it is on paper, doesn't mean that it is set in stone" (also see http://www.proz.com/translation-articles/articles/554/1/Contracts-I:-Would-you-sign-this? ). I, for example, simply strike through the clauses I object to and send it back to them - if they really want to collaborate they usually accept my changes (more often than not). If they don't budge or are not willing to negotiate, then I really don't want to collaborate with them either.

Have a nice weekend!

[Edited at 2006-07-07 14:05]


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Samuel Murray  Identity Verified
Netherlands
Local time: 05:03
Member (2006)
English to Afrikaans
+ ...
Any transaction involves a contract Jul 7, 2006

Jason Willis-Lee wrote:
I have always thought the idea of freelancing is that there is no contract since one is not an employee and offers exclusive dedication to no-one.


If you go to the copyshop to make some photocopies, and you pay your money and the guy there makes your copies, then a service contract has just been concluded between you and the shop keeper. The contract can be implied or verbal. A verbal contract would be if you had said "how much for 10 copies", he had said "a dollar fifty" and you had said "okay". An implied contract would be if you just hand him the documents, he makes copies, you hand him your credit card, and he swipes it, and no words are spoken even though there is no doubt in either of your minds as to what the terms of your contractual relationship (buying the service of making copies) is.

Freelancer translators often have implied contracts with their clients, too. The contracts do exist even though the terms of the contracts have not been specified. If a client wishes to specify the terms, then you are welcome to make him happy, as long as the specified terms are similar or the same as the implied terms would have been.


[Edited at 2006-07-07 14:36]


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RobinB  Identity Verified
Germany
Local time: 05:03
German to English
You're a business Jul 7, 2006

Jason,

Forget the freelance stuff, that's just a matter of status.

Basically, you're a business (self-employed), and every translation you do for a client is a business transaction. Every business transaction the world over is based on a contract, whether express or implied. Written contracts are always best because the rights and obligations of both parties are spelled out in advance.

The question of whether it will stand up in court or not can only be answered by a lawyer in, or with experience of, the jurisdiction involved. I'd have thought the more important question is whether there is a good balance between your rights and obligations under the contract.

Robin


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xxxPRen  Identity Verified
Local time: 23:03
French to English
+ ...
Careful, now Jul 7, 2006

I understand that Proz.com has instituted a new ruling regarding legal interpretations by individuals who are not practising attorneys (or barristers and solicitors in other jurisdictions), on pain of banning from the fora. We'll probably be getting a message from a moderator informing us of the new roll-out any day now, followed by kudos to those who who jump onside and brickbats to those who don't.

These matters should probably be referred to the appropriate professional.


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Steffen Walter  Identity Verified
Germany
Local time: 05:03
Member (2002)
English to German
+ ...
You seem to have misunderstood something, Paula Jul 7, 2006

Paula Rennie wrote:
I understand that Proz.com has instituted a new ruling regarding legal interpretations by individuals who are not practising attorneys (or barristers and solicitors in other jurisdictions), on pain of banning from the fora.

These matters should probably be referred to the appropriate professional.


This new rule is to cover legal interpretations directly associated with the situation of ProZ.com in its interactions with members, users etc. What it does not cover is legal advice or interpretation unrelated to the site or ProZ.com as a business (which seems to apply to the subject of this thread).

That said, it is of course always a good idea to refer such questions to a competent legal professional.

Steffen


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xxxPRen  Identity Verified
Local time: 23:03
French to English
+ ...
Oh... Jul 7, 2006

Steffen Walter wrote:

Paula Rennie wrote:
I understand that Proz.com has instituted a new ruling regarding legal interpretations by individuals who are not practising attorneys (or barristers and solicitors in other jurisdictions), on pain of banning from the fora.

These matters should probably be referred to the appropriate professional.


This new rule is to cover legal interpretations directly associated with the situation of ProZ.com in its interactions with members, users etc. What it does not cover is legal advice or interpretation unrelated to the site or ProZ.com as a business (which seems to apply to the subject of this thread).

That said, it is of course always a good idea to refer such questions to a competent legal professional.

Steffen


Oh I don't think so.


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Emma Gledhill
Switzerland
Local time: 05:03
German to English
+ ...
Read the contract carefully and critically Jul 21, 2006

I have seen such contracts that include all sorts of weasel clauses such as non-competition clauses in perpetuity,
allowing the agency to make a change to the translation then charge you penalties if the end client doesn't like it, imposing penalties at a whim with no burden of proof, a prohibition on documents leaving the client's premises (!) and so on.

Even though such clauses may well be thrown out as unfair in a court of law, it's a hassle you can normally do without.

IME the implicit contract of assigning and accepting a job usually works very well. The advantage of being independent is that you are not obliged to sign one of these contracts and you may lose a client over it, but if you are any good, chances are the PMs will just keep sending you work anyway.

I sometimes suspect, I'm sure someone will correct me if I'm wrong, that these contracts are required as part of ISO certification and they just get sent out to a lawyer with no knowledge or experience of the translation industry to draft as a generic document.


[Edited at 2006-07-21 07:38]

[Edited at 2006-07-21 07:39]


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