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Failure to pay contract fees
Thread poster: FinnTrans

FinnTrans
United States
Local time: 15:02
Finnish to English
+ ...
Apr 24, 2010

A Swiss translation agency contacted me in February for a flat fee (translation only) somewhat complicated (legal) document, that took me significant time to complete, but I completed it within the time agreed. Then this translation was send to a third party proofreader in Germany who said that the translation was good and there were just a few syntax and grammatical errrors to be corrected (which is normal). Thus, the agent sent the translation back to me for review. I accepted these corrections in timely manner and sent the corrected translation as well as my invoice back to the agent.
I thought I was done with this job, but then about a month later the agent sent the translation back to me saying that the client wanted to modify (novel write) parts of the translation and did not accept it as it was. I said that there was nothing wrong with the translation as it was, but if the client wants to modify, alter, rewrite, novel write their document (that is up to the client), but if they want me to further work on this document, they will need to pay my hourly rates as the flat fee contract is not an open ended agreement.
Then today (about 2 months later) I received an e-mail from the agent who said that she had forfeited their fee with the client and that they will not pay my fee!!! I responded that the agents unilateral release of their fee did not release the agent from their obligations to me, as I did not at any time agree to such release, and they still owe me my fee.
If the agent does not pay my fee, what can I do, since I am in the US and the agent is in EU? The local courts in US may not have jurisdiction over this case, but I will research this issue (long arm statutes), in case I need to proceed through litigation at some point???

I did find this:
http://europa.eu/legislation_summaries/consumers/protection_of_consumers/l16028_en.htm

Does anyone know an attorney in Switzerland who would be willing to take a case like this, as I am not going to let this one go!




[Edited at 2010-04-24 23:25 GMT]

[Edited at 2010-04-24 23:28 GMT]

[Edited at 2010-04-25 00:06 GMT]

[Edited at 2010-04-25 00:07 GMT]

[Edited at 2010-04-25 00:18 GMT]


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Tom in London
United Kingdom
Local time: 20:02
Member (2008)
Italian to English
no changes Apr 24, 2010

The only thing to do, IMO, is to write in an exaggerately polite but firm way, stating that:

(a) in the translation field it is normal practice not to modify any text after it has been released to the translator

(b) that so far as you are concerned your work has already been completed, checked, and approved

(c) that you therefore await payment in full.

And then see what happens......

I would try to avoid lawyers under all circumstances.

Your aim should be to get paid (even if it's less than you originally agreed) and get out ASAP.

.... and in future, always specify at the outset that after you have received a text for translation you will not accept any changes or additions.

[Edited at 2010-04-25 08:23 GMT]


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xxxmediamatrix
Local time: 16:02
Spanish to English
+ ...
Drop it. Apr 25, 2010

Sirpa Cossaboon wrote:

A Swiss translation agency contacted me in February for a flat fee (translation only) somewhat complicated (legal) document, ...


[Edited at 2010-04-24 23:25 GMT]

[Edited at 2010-04-24 23:28 GMT]

[Edited at 2010-04-25 00:06 GMT]

[Edited at 2010-04-25 00:07 GMT]

[Edited at 2010-04-25 00:18 GMT]


Before this OP got edited for the umptenth time it said the source text was about 3,500 words. So there's no great fortune dependent on the outcome, even at USD 0.20 per word. The translator is in the US, the agency is in Switzerland. There's no way a Swiss lawyer is going to handle this case for 'USD 0.20 per word'! (20 Swiss francs/word might be closer to the mark.)

Sirpa Cossaboon wrote:
If the agent does not pay my fee, what can I do, since I am in the US and the agent is in EU? The local courts in US may not have jurisdiction over this case, but I will research this issue (long arm statutes), in case I need to proceed through litigation at some point???

I did find this:
http://europa.eu/legislation_summaries/consumers/protection_of_consumers/l16028_en.htm


Please check your facts. Switzerland is not in the EU. The legislation you refer to is irrelevent.

Rather than forking out ten, fifty or a hundred times the value of the debt in fruitless legal fees, I suggest you go to your local wine merchant and use a small part of those funds to buy a case of your favourite tipple. And if you feel so inclined, cry a little. It does no harm and is part of the natural healing process after getting 'ripped off'.

MediaMatrix

[Edited at 2010-04-25 00:53 GMT]


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FinnTrans
United States
Local time: 15:02
Finnish to English
+ ...
TOPIC STARTER
Alterations by end client Apr 25, 2010

Thanks Tom! I have already done that (given them stern notice of my intentions and that I cannot be responsible for the client's salaried employees moodiness and that this case was already completed). I am now waiting for their response.
I have already spend significant time on this case that I will collect my fees even if it will cost me more than the fees that I should have received, because I do not want to roll over and allow them to take advantage of me. I do not care about getting any more work from them as I am very busy and could work as much as I ever want to. Thus, I am not adverse to suing them.
Also I rarely take this type of work (the contract that I had with the agent was for translation only and for a flat fee). I usually work for an hourly rate only and I am very busy. I told this to the agent before accepting this job. I only accepted this flat fee job, because I had some time then (a big mistake), but it did not mean that I will continue working on this case endlessly. In other words, the agent expected me to continue changing the document based on the whims of the finicky client. By law there are no open ended contracts and I am not going to become slave labor for some finicky and moody end client.


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l08l
Indonesia
Local time: 02:02
English to Indonesian
+ ...
Agree with Tom, and Legal Action as the Last Resort Apr 25, 2010

Translator only translate what is provided to them. That's it. If there are modification or addition within the substance of the translated document, then they will have to pay more for translating such modification or addition.

You have to tell them that you only know them and make a deal with them, and not their client. Your legal relationship is only to them, not their client, this kind of legal principle is acknowledged universally.

User agreement (as they and you agreed to before using this website) stated that the choice of law is the law of Delaware. You should check it.

The court in US might have jurisdiction over this case because:
- you are a US citizen
- you live in US
- Choice of Law is Delaware, which is in US
- there might be a possibility that Proz.com is hosted in the server which is located in US.
- in Contract between Absent Persons, US acknowledge "Mail Box Principle". It applied like this: You (translator) invite an offer from potential client (them), they sent an offer to you, you accept it. By the time you send the acceptance of the deal to them, the deal is already in effect. Guess what, you send your acceptance of the deal in US, and referring to Mail Box Principle, the law applicable for the agreement is the Law of US (the law applicable at where the acceptance were sent).

In my opinion, going to court does not worth the money and the headache if the disputed money is still below 10.000 (for small court).

But if you still have not change your mind, you could at least go to small court to sue them. Although you did not get the money (may be because you have to pay lawyer fee, etc), but at least you could have the Court order Proz.com to ban them from using Proz.com in the future.

If I am you (assuming that the disputed amount of money still below four zeros), I will just send correspondency as Tom advised to them, and if they ignore it, I will just request Proz.com to ban them from using this website, post a warning about them to all the translators here, and just forget about it. Life goes on...

Good luck.

PS: Hey, by no means you can regard this post as legal advice or anything similar to it. I am not liable for any damage or risk you suffered for doing anything in reference to this post. Use it at your own risk.


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Kevin Fulton  Identity Verified
United States
Local time: 15:02
German to English
Probably out of luck Apr 25, 2010

Collecting a fee from another country is outrageously expensive, especially if you're in the US. Just don't bother.

I was in a similar situation many years ago. The end client lodged a complaint with the agency 3 months after the translation was completed. The complaints were unjustified (the "corrections" involved several changes in register, as well as complaints about deviations from their "standard" terminology which was never provided).

I told the agency where to go and wrote the fee (600 EUR) off to experience. Sometimes that's the only thing you can do.


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 21:02
Member (2005)
English to Spanish
+ ...
First of all, add a Blueboard Apr 25, 2010

Unfortunately I have to agree with our colleagues: it would be rather futile to sue the agency for a small amount.

Something you can do is help to protect others from this agency by posting a low Blueboard score here in Proz.com. You don't need to say anything in the comment. Just post a LWA of 1 for this agency, and any other person checking the agency's history will understand.

You can add the agency to the Blueboard even if it does not appear in it. You can as well email a moderator to ask how you should go about adding the firm to the Blueboard and adding your low rating.

Please remember however that it is not allowed to use the Blueboard to "threaten" a customer into paying you and thus avoid the bad rating. A poor rating for an agency and your collection process are separate things.

I am sorry to hear about your troubles and completely sympathise with your struggles! Good luck with it.


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Bryan Crumpler  Identity Verified
United States
Local time: 15:02
Dutch to English
+ ...
Sounds incredibly familiar... Apr 25, 2010

It's one thing to not pay you because they simply don't have the money (yet). It's another to voluntarily forfeit the fee altogether.

Contact me privately and perhaps I can provide some tips on how to approach this.


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FinnTrans
United States
Local time: 15:02
Finnish to English
+ ...
TOPIC STARTER
Thank you very much! Apr 25, 2010

Thanks, especially to Bishamonte. I am very close to Delaware and I am very familiar with how to proceed with a small claims action. It only costs $20-$25 dollars here to file a small claims suit.

I will wait a few days for a response to my demand for payment and if still not paid, then I will post a Blueboard entry and also I will sue the agency in Delaware District Court. The agency is undoubtedly going to try to defame me to defend themselves in response, but I have an excellent case in court.

p.s. I have never worked for less than $.30/word and most of the time I make $60/ hour. For the past several years I worked only part time making very good income just translating litigation cases.


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Katalin Horváth McClure  Identity Verified
United States
Local time: 15:02
Member (2002)
English to Hungarian
+ ...
User agreement? Delaware law??? Apr 25, 2010

bishamonten wrote:
User agreement (as they and you agreed to before using this website) stated that the choice of law is the law of Delaware. You should check it.


The user agreement you sign when joining ProZ.com is just that, an agreement on how to use ProZ.com. It is about the relationship between you and ProZ.com. It has nothing to do with any business relationship you may have with other parties, whether you got to know them through ProZ or not.
It says:
Any action related to this agreement must be brought in the federal or state courts located in the State of Delaware, and you irrevocably consent to the jurisdiction of such courts.


this agreement = the user agreement of ProZ.com

Sirpa wrote:
I am very close to Delaware and I am very familiar with how to proceed with a small claims action.
...
I will sue the agency in Delaware District Court.


The agency is in Switzerland, right? You are in Pennsylvania, right? Why would have Delaware jurisdiction over this dispute?

If you want to pursue the legal path, check the contract you had with the agency to see what it says about dispute resolution. Respectable contracts do have a clause at the end about jurisdiction and/or arbitration.

Katalin


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FinnTrans
United States
Local time: 15:02
Finnish to English
+ ...
TOPIC STARTER
Jurisdiction/ Remedies for agent failure to pay Apr 26, 2010

Yes Katalin, you are right. However, PA courts may have jurisdiction, because the agent contacted me in PA, where I am located and where I do business.
Also, if the agent fails to pay my fee after reasonable notice, the agent is in Breach of our Express Contract. If so, I have a legal right to attempt to collect my fees from the end client, because I have an Implied Contract with them as they are using my translation (even with their alterations) and benefiting from my labor.
Further, I can make an ethics complaint with the end client's ethics hotline, due to them having (even if indirectly) used slave labor, which is in direct conflict with their ethics code (that I just translated).


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Bryan Crumpler  Identity Verified
United States
Local time: 15:02
Dutch to English
+ ...
Jurisdiction Apr 26, 2010

If they're based in Switzerland, it serves you no purpose to sue here unless they held assets in the US.

My guess is if you cannot get payment from the agency, and that they "gifted" your work to the end-client by forfeiting their fee, then pressure the end client to pay you your due. More than likely, the amount owed to you is less than what they were going to pay the agency anyway.


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FinnTrans
United States
Local time: 15:02
Finnish to English
+ ...
TOPIC STARTER
End client Apr 26, 2010

Thank you Bryan,

I will give the agent a few days to pay and then I will proceed accordingly! Any further suggestions, please posts here. Thanks!


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Laurent KRAULAND  Identity Verified
France
Local time: 21:02
French to German
+ ...
Ask them for written proof Apr 26, 2010

Sorry, but I just cannot believe this story!

So basically, the agent tells you that they forfeited their fee because they apparently could not deal with the end client (my interpretation) except by taking this course of action. And they expect you to do the same? Great working methods!

The curious thing in this matter is that they did not reply to you until you wrote them and had to "squeeze" information out of them.

I would clearly ask them for written proof (correspondence, credit note, etc.) or request this proof from the end client if you plan to contact them anyway.

BTW the administrations in charge of such matters at the cantonal level are the "Betreibungsämter" / "Offices des Poursuites", but you need to be located in Switzerland or to have someone acting as your representative there in order to contact them for assistance.

PS: I agree with some of the above posts re the content of the files to be translated. There may be some changes, of course, but not an ad infinitum processing, adding, correcting etc. plus the end client has to ensure, as part of their contractual responsibility, that the files sent to the agent actually contain the material to be translated.

[Edited at 2010-04-26 04:46 GMT]


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Michael Wetzel  Identity Verified
Germany
Local time: 21:02
German to English
u.s. legal basis and sue in switzerland Apr 26, 2010

More non-expert advice:
(1) Look in the contract/terms and conditions to see if there is anything about what court is responsible in the case of disagreement.
(2) Find the legal status of translations in your place of business = PA ("works for hire" or something along those lines, I would assume).
(3) U.S. law may be very different, but I would guess that the client has to give you the chance to improve your work in reaction to concrete sugestions and that, if you do this, they have to pay. And, of course, they can't add new services (translation of new text) into an existing contract without paying for them.
(4) The quality of the translation seems more or less irrelevant to the legal question. If you did your work in a fundamentally orderly and timely manner and carried out all requested corrections, then the client (the translation agency) has to pay you in full - regardless of whether or not their client pays or is pleased with the translation... The complaints of the client are only relevant if: (1) they are concrete and reasonable, (2) the agency passes them onto you, and (3) the agency gives you a reasonable deadline to address them... Again, this may not be PA law, but I would guess that it's close.
(5) I would not contact the agency's client in any way (especially not for money). If you get into a legal battle, this could be very dangerous - you have almost certainly signed something declaring that you won't do this.
(6) If the company has no US branch, then suing in Switzerland (on the basis of a contract according to PA or US Law = your place of business) seems like the best way to actually get money from them. I don't think a US judgment would interest them.

Sincerely but uninformedly,
Michael


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