Is an unsigned contract enforceable? Being sued for damages in lieu of notice

[guitarboy]

Wonder if anyone out there can help. I starting having guitar lessons towards the end of last year.

 

The agreement handed to me wasn't to my satisfaction.

I didn't like fact there wasn't enough flexibility,

also the notice period.

I raised this with the tutor he said that was ok he can be flexible,

so we confirmed time and day of my lessons and cost and I started the lessons.

 

A couple of months in

he put the price up, but I didn't really have a problem with that.

 

However about 6/7 months into lessons due to unplanned work situation.

I had to temporarily move away immediately.

 

I let my tutor know at the end of the term, that I wouldn't be coming back next term.

 

He said I would have to pay the fees anyway, as I'm required to give a months notice.

I said I didn't sign up to that, he said I came to the lessons meaning I agreed to the T & Cs.

 

Clearly he is now going against what he originally said, what we verbally agreed.

 

I didn't sign the paperwork can he make me pay?

 

He has sent me a small claims warning before proceedings letter from his solicitors.

I don't want pay the guy a penny as I'm not gonna have the lessons.

 

All advice welcome.

 

Cheers.

Edited May 25, 2013 by guitarboy
formatting

[boswell]

Hi and welcome to CAG, I would say you are not tied to the agreement as you never signed, but the guy has a point in that you attended for several months. Depends how a judge would view it if it went to small claims court and the costs you could incur as a result.

Would it really be out of the question to pay a months notice- and save the hassle ?

[guitarboy]

Appreciate the reply; yeah I was thinking that but when I got the snotty letter from his solicitor, I wanted to know where I stood legally because I didn't agree to the written contract that's why I didn't sign it. So it's a bit annoying him trying to enforce an unsigned agreement.

[Peterbard]

It is usual for this kind of arrangement to have a cancellation period. The tutor will generally use this to fill slots in his class and ensure continuity of income.

 

Keeping in mind that a verbal contract is just a binding a s a written one( despise common belief), the judge will decide based on the evidence provided.

You may claim that, due to the situation with your work and the uncertainty of any extended arrangement you would never have agreed to a period of notice, he may claim that it was a standard clause and that he ensured all his students were made aware of it.

 

As said the judge will decide which is the most probable case based on the pleadings.

 

I don't know if that helps at all.

[boswell]

Well hindsight is a wonderful gift I suppose, but why didn't you change it at the time to something that you both agreed was acceptable. Not doing so might imply your acceptance.

[BankFodder]

You may have to pay a cancellation fee - but that fee must reflect any administrative losses caused by your early cancellation.

 

If the cancellation charge is greater than that then that would be a disproportionate unenforceable penalty.

 

Ask him in writing what his actual losses are caused by your cancellation and offer to pay those. These losses are not to include fees for lessons which you didn't have. They are merely to compensate him for losses such as advertising for a replacement pupil or wasted materials etc.

 

I suggest that you pay him one month fees and tell him to sue for the rest - but put everything in writing

[guitarboy]

Thanks. I think that is what he wants one month fees in lieu of notice. But I just thought I might have a stand as we agreed something verbally contrary to what was in the agreement. You do wonder the point in signature areas on contracts if you don't actually need to sign them! Also he entered the lessons without me signing up...maybe he's a bit at fault too.

[Peterbard]

The common law requirements for the formation of a contract do not include signing a piece of paper sadly, 1 month is usual in these cases.

[slick132]

Hi GuitarBoy,

 

I was asked to look in on this ...............

 

As said above, whether or not you signed the agreement is not the only factor. However, without a signed agreement, the tutor would have a harder job if he took the case to court. In any event, court action is most unlikely.

 

Your best move is to write confirming that you have relocated and were unable to continue lessons.

 

Say you recognise it is fair to offer to pay a months fee in lieu of notice. Accordingly, you now offer to pay one month's fee in full and final settlement of all amounts payable to the tutor. If he will confirm in writing that he accepts your offer, you'll pay the money promptly to end the matter.

 

See how he responds and send the letter to him by RM Signed For Post or get a free Certificate of Posting from your PO when you send the letter.

 

Let us know ..............

 

[steampowered]

You say that you raised the issue of the notice period. But what was actually agreed? If you did not agree a specific new notice period, then there is no verbal variation of the contract, and the terms govern the relationship.

[jpegnall]

I can't help but disagree with some of the comments above. You didn't accept the T&C's and you didn't accept them through conduct as there was no offer to accept - I will explain.

 

Ok had you been given the contract (the offer), not signed and said nothing then you'd have accepted through conduct. However you clearly said the T&C's were not suitable as they were not flexible (clearly a rejection of the offer and once rejected an offer cannot subsequently be accepted) and he said he would be more flexible (uncertain term) and you agreed a price and proceeded. I think what we have hear is a verbal contract where the only certain terms are indeed the price. I think if those are the facts they would have a very difficult task in establishing the terms and conditions are the governing contract and therefore the notice period would not be enforceable.

 

Contract law is based on case law, however over the years the process of formation of contracts has become pretty established, you need an offer, acceptance (though conduct will do), consideration and sufficent certainty. The facts are pretty clear, offer, rejection, parties proceeded on verbal contract with limited certain terms, oral contract is varied when the price is put up to which you agreed. There is no signed document, which will push the burden onto him as claimant (that is a practical point rather than a legal point).

 

There are also other factors which should be considered, you will be afforded the benefit of the unfair terms regulations and there is the concept of fustration (it has been a while since I've looked into that).

 

I think you should set out a well worded letter to that effect and explain you will defend yourself in the small claims court - post the letter on here so people can comment. I would place a fairly good bet that he wouldn't proceed with court action.

 

Interestingly if you are moving address and he doesn't know your new address he can't serve on you.

[Peterbard]

I think the fact that the OP took lessons and paid for them would bee prima facia proof of the existence of a contract.

 

However this matter should be settled without going to law IMO, the reasonable thing would be to negotiate a reasonable offer.

[jpegnall]

There is a contract - yes, but a verbal contract based on very simple terms, not the terms and conditions the OP refers to or upon which the tutor is trying to enforce this claim.

 

I agree that it is always best to try to settle where possible - but the OP doesn't want to pay a penny and I think has a reasonable chance of not paying anything.

 

Personally I would write to the tutor and say that I would pay and attend for two more lessons for the reasons set out above - I am pretty sure the tutor will not be interested in teaching the OP anymore and silence would follow!

[Annie71]

This is confusing. Were the lessons term time only. When did you find out you couldn't return and when did you tell the tutor. I think those points may be relevant should it get nasty

[citizenB]

This thread is now in "General Legal Issues"

 

It is purely an administrative move.