Contracts

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As an arts freelancer, you are an independent contractor providing a service to the hirer at your own risk unlike a full-time employee of an arts company. This means you will not be protected by the Employment Act nor enjoy benefits like employer CPF contribution, work injury compensation, medical and dental subsidies or paid annual leave.

Furthermore, you are not protected from liabilities which may arise from your exercising of your profession and you may have to pay damages to the hirer for damages that you caused. Thus, having a written contract is all the more important for you, so you are legally protected at the very least against unpaid fees.

 

Why should I have a written contract?

A contract is essentially an agreement that has been reached between you and your hirer with terms and conditions both of you regard as binding. It is best to always document agreed on terms and conditions through a written contract, to avoid dispute later on.

A properly written contract ensures you and your hirer are aware that:

  • You (and not someone else) have been contracted;
  • Your work has a specific scope;
  • There is an agreed time-frame to complete this specific scope of work;
  • You will be paid an agreed amount;
  • Responsibilities are marked out clearly between you and your hirer;
  • There is recourse should you or your hirer not fulfil the terms of the contract; and
  • There are agreed circumstances where you or your hirer can unilaterally walk away from the project legitimately.

Before a contract is enforceable, you must be clear of the following:
  • Your hirer has offered the project to you with agreed and clearly stated terms;
  • You have accepted the agreed and clearly stated terms in writing; and
  • There is a clear intention from both parties to create this legal relation.

The signing of a contract typically involves the handwritten signatures of you and your hirer. However, the Electronic Transactions Act (Cap.88, 2011 Rev.Ed. Sing.) allows for electronic records to be used in expressing and accepting an offer to form a binding contract. What this means is, you need to be careful with off-hand responses to job offers or terms within the job offer done via email or Whatsapp, as the offer may be a valid offer and your response may be taken as acceptance of the offer, just like a binding and enforceable written agreement.

To sign or not to sign? My contract has unfair terms!

Contracts will never be equally fair towards both you and your hirer. A contract given by your hirer will be in the hirer’s interest first and foremost. However, this does not mean that you have to accept all contract terms. Do negotiate as much as possible with your hirer on terms you deem grossly unfair, be it payment amount, payment period, scope of work, liabilities you need to bear for late delivery etc. If it seems daunting, do discuss and assess your risks and liabilities with a trusted arts practitioner friend.


So, the answer to the question “to sign or not to sign?” is “yes, sign” if you have done fair assessment on the terms in the contract and you are satisfied with your background check on your hirer. That said, it is still worthwhile to always have a Dispute Resolution/Recourse clause* in your contract to safeguard yourself against any dispute that may arise when work begins. For an individual, mediation is usually the least expensive and the least time-consuming amongst the various forms of dispute resolution.

For a sample of a Letter of Agreement, click here.

For a sample of a Performance Agreement, click here.

 

*extracted from the "ADVOCATES FOR THE ARTS - A LEGAL HANDBOOK FOR THE CREATIVE INDUSTRIES", developed by the Law Society Pro Bono Services

 

How do I resolve a major dispute with my hirer?

The importance of having a written contract is not just to ensure a binding agreement on fees paid to you or the scope of work to be delivered, but just as importantly, the method of resolving any misunderstanding that may arise between you and your hirer on any of the agreed terms inside the contract.

If you and your hirer are unable to resolve this over a cup of coffee, then turn to the Dispute Resolution/Recourse clause* in your contract.

Primarily, there are three types of dispute resolution – Mediation, Arbitration and Litigation. Always resolve any dispute through negotiation or mediation first, with litigation as your last resort as it is costly and time-consuming. 

Here is a short explanation of what the three dispute resolutions look like:

 

Mediation

This is a voluntary process which engages the assistance of a neutral third party called a mediator. The mediator will facilitate negotiations between you and your hirer with the sole intention of reaching a mutually acceptable agreement. Primarily, he or she will guide the unhappy communication towards an understanding of both parties’ needs and interests. Mediation focuses on the interests of both parties, and both of you have control over the outcome, unlike in a lawsuit where you will face a judge deciding on your case. Mediation can also preserve your working relationship with your hirer, especially when the contract is for a long term. For more details on Mediation, click here.

 

Arbitration

This is a procedure in which the dispute is submitted, by agreement of both you and your hirer, to one or more arbitrators who will make a binding decision on the dispute. The lure of arbitration is that it is a much simpler version of a trial involving less complicated rules. The role of an arbitrator is similar to that of a judge, although the procedures are less formal e.g. the hearing can take place in a private, neutral venue. An arbitrator is usually an expert in his or her field of practice. However, do note that the final decision made by the arbitrator(s) is binding and there is limited scope for appeal after the decision is given. For more information on Arbitration, click here.

 

Litigation

This refers to the enforcing of one’s rights through the courts. Legal proceedings start with your lawyer sending a letter of demand to your hirer requesting a certain action by a given period of time. If your hirer does not respond, then you may commence court proceedings. The process of litigation is time-consuming and tedious, involving significant paperwork. It should be highlighted that since lawyers typically charge by the hour, a lengthy legal process will result in correspondingly hefty legal fees for you. For more information on Litigation, click here.

 

*extracted from the "ADVOCATES FOR THE ARTS - A LEGAL HANDBOOK FOR THE CREATIVE INDUSTRIES", developed by the Law Society Pro Bono Services

If I breach my contract, what will happen to me?

If you breach your contract, and depending on the seriousness of your breach, you may suffer termination by your hirer, a demand for damages, or worse, being sued and taken to court. However, if you breach your contract because of reasonable causes, e.g. discovering you have a critical illness, then do communicate honestly with your hirer to try and find an alternative solution.

However, if negotiations fail between you and your hirer, seek third party assistance, e.g. through the use of mediation services. However, as mediation is a voluntary process, it does not mean that your hirer is obligated to go for mediation just because you would like to do so. Hence, always include a Dispute Resolution/Recourse clause* in your written contract.

*extracted from the "ADVOCATES FOR THE ARTS - A LEGAL HANDBOOK FOR THE CREATIVE INDUSTRIES", developed by the Law Society Pro Bono Services

 

If my hirer breaches our contract, what can I do?

If your hirer breaches the contract e.g. failing to pay you on time or failing to pay you the agreed amount, exercise the Dispute Resolution/Recourse clause in your written contract. That means your contract must include the all-important Dispute Resolution/Recourse clause* so that the hirer is contractually bound to go for the agreed method of dispute resolution, e.g. mediation, if he flouts the terms of the signed contract.  

Generally, the recourse available to you includes:

  • termination of contract;
  • claim for damages;
  • specific performance of an act (which is usually a term stated in the contract) e.g. to return all copyrighted materials to you;
  • injunction requiring a party to do or cease to do an action.

 

*extracted from the "ADVOCATES FOR THE ARTS - A LEGAL HANDBOOK FOR THE CREATIVE INDUSTRIES", developed by the Law Society Pro Bono Services