Freelancers and contracts: what you should know
(It is common sense that I do not intend the article to be legal advise…but you never know. If in doubt, consult your lawyer or if you need an introduction, send me an email. Also, these are my own views and mine alone. It does not represent the organisation I work for or am affiliated with.)
New year, new things to do right? One of the things I’d like to make myself useful with this year is to share some of the legal knowledge i’ve acquired through the course of my LLB and make them easy to understand in a real world context.
I’ll be writing this section with freelance workers in mind. But the same mechanisms apply regardless of the trade you’re in.
For the next few weeks, we’ll be talking about contracts. Contracts form the heart of all negotiations and articulate all the agreements between trading people.
Sadly, too many people use contracts improperly.
1.) Some contract writers over protect their own organisation. They insert clauses unfair to the other party. If you spot contracts like this, you might want to avoid working with the contract maker because it hints of a difficult relationship ahead.
2.) Some use the contract as an instrument of threat. This is not its primary purpose and using it in this manner is not good business practice.
3.) Many think that anything and everything that goes into contract is enforceable…and in converse, if it is not written, it is not enforceable. This is incorrect.
There are clauses inferred by legislation and by conduct, both do not require writing in order to be enforceable. Clauses that are contrary to legislation, such as the Unfair Contract Terms Act are not enforceable even though they may be signed and agreed. One example of which is death, you cannot disclaim responsibility for death.
4.) Some think that only lawyers with their complex writing language can produce a legally enforceable contract. There is nothing stopping an ordinarily educated person from creating a good, binding agreement. Contracts don’t even need to be written to be enforceable, verbal contracts are just as valid. You might face problems with evidence later on though.
I view contracts as a form of clarity. I tell whomever I do business with that I’m writing points of our agreement so that we do not come into conflict in the future.
Avoiding conflict is the entire purpose of the contract. It is not a magic document that formalises a sale. So if you want to avoid conflict, you will want to be very specific about the roles and responsibilities of both parties.
Start a contract by thinking about what each party promises the other.
If you’re a web developer, you want to be very clear about what product you’re delivering. Document this in tables and timelines. Tech products are at risk of this thing called “feature creep”. The client will grow the project in ways that was not agreed upon or deviate from the original intent.
If you’re a designer, you will want to ask the client what they want to do if a piece of work is not accepted after several reviews. A lot of communication is necessary in the field of design because the work is necessarily non-verbal; a blue flower can mean a million different things.
Talk about the difficult things: what would happen if a product or project had flaws? How do we be firm on deliverables? Is there going to be a warranty period?
Keep the condition for payment to dates. Don’t use subjective language such as “Hirer will pay $X’000 upon completion of project”. Projects never complete.
Contracts are good practice. They clarify expectations within parties, provide the parameters and specify how an agreement comes to an end.
For this reason, I disagree with using template contracts. Or if they are used, parties should sit together to write clauses specific to their arrangement.
Both client and service provider should not shy away from contracts because the process of creating one uncover situations that could turn a relationship sour in the future.
In later articles, I shall be discussing the components of a contract in layman’s words. I will be sharing some of the cases I’ve seen or the experiences I’ve faced in the past, real world working examples.
With this knowledge, I hope freelancers will be able to create better contracts and avoid conflict in their work!