This article was originally published on September 19 2012… THE other week, the allmediascotland Media Clinic posed a question for Scotland’s media community to help answer.
One question was posed, two answers were received.
The question was: What is the legal status of a verbal contract in Scotland?
The answers offered – for information purposes only and should not be regarded as legal advice – are from (1) Natasha Morris, legal officer at the National Union of Journalists; and (2) Francis Shennan, director of MediaFaculty.com.
(1) Verbal or commission contracts under Scottish law are binding, but it would be a matter of proof. Contracts can be by email or text even, again it will be a case of evidencing what was agreed between the parties. Always best to put it in writing however.
The only exception, is in relation to property, homes or land – in which case it must always be in writing.
(2) Sam Goldwyn famously said a verbal contract was not worth the paper it was written on. Sorry, Sam. Verbal contracts can be legally binding. The problem is: What did the contract say?
That is why we usually write contracts down, but many daily transactions are verbal. I don’t need a written contract when I buy a bottle of wine (although the health lobby may change this in the future). Many of the terms of the contract are implied or imposed by statute, such as the Sale of Goods Act.
Freelance journalists have frequently been commissioned with the briefest of phone calls. Unsurprisingly, disputes later arise about what was agreed. I always advise confirming the content of these phone calls with an email. The email does not form the contract, but it is some evidence of what was said when the contract was made. This evidence may well be disputed by the other side but it could be persuasive.
Some terms of the contract may be implied. If you supply copy or images for the agreed fee or as a press release, there is an implied licence to publish this material. But the law will not imply any more than is necessary for the completion of the contract.
It will not, for example, infer more than a basic licence to publish without other evidence, and it will certainly not infer a transfer of copyright that is not in writing. This was clearly spelled out in a case over archive material – Alan Grisbrook versus Mirror Group Newspapers in 2009 – a case I summarised in one journal as “a pain in the back issues”.
When the contract is completed, payment becomes due. If a commissioning editor, say, decides not to use some or all of the material, s/he is still liable for the full fee. ‘Kill fees’ apply only when the work has been started but not completed. If the reason for not publishing the material is failure to fulfil the brief – which is why you need evidence of what the brief is – the editor may argue the contract has not been completed, but s/he should have some basis for saying this.
You cannot add terms to a contract afterwards. So, for example, terms added to an invoice, a remittance note or a cheque do not form part of the contract unless you can show the other person should have known these were part of the contract terms.
So, your word might be your bond – but it’s not as good as an email.
Our next question for the Media Clinic is: Should I be VAT registered?
If you would like to suggest an answer – in the spirit of camaraderie – please do send it to us, here, for possible publication on Monday, October 1.
This article was originally published on September 19 2012…