5 minute read
Legal & business
Professional harpist Anna Wynne, ISM’s Information and Advice Officer, provides guidance on contracts for those performing at weddings and civil ceremonies
Above: Anna Wynne, ISM’s Information and Advice Officer Photo: Yvonne Thompson As restrictions ease and people begin to have larger weddings and civil ceremonies, more musicians may be asked to perform at these events. The future is still uncertain and there are concerns that restrictions may be re-introduced on a partial or local basis to deal with new COVID variants or surges in cases. So now it is more important than ever to enter into a written contract with your clients, setting out the obligations and commitments of both parties. Try not to rely on a verbal agreement, as the terms of the agreement are harder to prove if there is any dispute. In this feature we take you through some of the items that your contract should include, but make sure you receive legal advice before entering a contract. ISM members can contact legal@ism.org for free legal advice on any queries you have about contracts, or if you would like your contract to be reviewed.
Force majeure clauses
‘Force majeure’ in contract law generally describes unforeseeable events or circumstances beyond the control of the parties involved, which may prevent, hinder or delay in fulfilling the purpose of a contract. Force majeure clauses are contractual clauses that alter the obligations and liabilities of the parties under a contract. A ‘force majeure’ event can include pandemic, war, famine or strikes. It is worth thinking about including such a clause in order to prevent your clients simply claiming that the contract has been frustrated (eg because they cannot now have the number of guests originally intended because of COVID restrictions) and therefore they have no obligation to pay fees or to fulfil any other agreed items. A force majeure clause will generally relieve the parties of some of their obligations, and it is important to understand the effects if such a clause is invoked. There is no legal definition of ‘force majeure’, so any clauses should be drafted clearly to include the relevant ‘force majeure’ events in plain English and to explain what will happen to the contract if one of these events happens. For example, your force majeure clause could allow you to postpone performance of the contract for an agreed period, so there is the chance of earning the originally agreed fees when circumstances permit. If you receive a contract containing a force majeure clause (or if you offer your own contract with a force majeure clause), take advice on the likely effects of the clause to be sure you understand what could happen if the clause is invoked.
Non-refundable deposits
Many musicians have tried to rely on retaining a contractual non-refundable deposit. However, these are likely to be considered unfair terms under the Consumer Rights Act 2015. But it is reasonable to retain some of the monies paid prior to the actual performance where you have undertaken administrative work, incurred costs, undertaken rehearsals etc. To help achieve this, consider adding a clause which allows your time and effort for administrative work and rehearsals to be recognised. In the event that the wedding or civil ceremony does not take place, you may be able to retain a proportion of the overall fee for any work completed prior to the actual engagement. Even with this type of clause in place, you will need to evidence the work you are claiming the money for. If individual circumstances allow you to rely on the clause, the cost will have to be proportional to the amount of work done and you would need to be able to provide a written bill with a proper fee structure for each piece of work completed. So it is important to document all your costs as you go along in order to have the evidence to rely on at a later date.
Cancellation of the contract
Over the past year, some clients have tried to rely on the legal doctrine of frustration (when it is impossible to perform a contract due to events outside of anyone’s control) as a reason to cancel the services of musicians at their events. Frustration brings the obligations of the parties to an end. If a client claims that a contract has been frustrated it will be down to you to prove that it has not. It is better to create contractual obligations which limit the client’s ability to claim frustration. A well-drafted force majeure and a robust cancellation clause are likely to help protect your position. If in doubt, seek advice.
Practical considerations
Make sure the ‘terms and conditions’ section of the contract also includes what will happen on the day: 1. Will you be performing indoors or outdoors, and do you have enough space to set up your instrument?
You may want to state that it will be your decision on the day to perform outside, and that you can change your mind mid-performance, dependent upon weather conditions. 2. If you are performing outside, stipulate that you expect to perform in a shaded, level area. The shade needs to protect you and your instrument from the sun or the rain. 3. Have you been informed how long you are expected to play for, and is there a provision for rest breaks? Most people stipulate between 10 to 15 minutes after completion of the first hour. 4. Are there provisions for refreshments? Depending upon the length of the engagement, you may want to request only drinks or sandwiches. 5. Are overtime charges mentioned and have you set out what happens if you cannot stay past the agreed contractual finishing time? 6. The contract should state what happens if the terms and conditions are not followed, ie the client must remedy the situation, or you are entitled to refuse to perform but will still be paid; and you should stipulate that amendments to the contract must be made in writing and by a certain date. For the latest guidance on government advice to prevent the spread of COVID-19, read our countryspecific pages for England, Northern Ireland, Scotland and Wales at ism.org.covid-19, and to read Anna Wynne’s feature in full see ism.org/blog/ musicians-contracts
