Is this clause reasonable?

[Mailman]

It is a penalty clause.

Which means it is unenforceable.

I guess the best thing to do is to get the clause removed because you know the agency is going to use that clause to not pay you when you decide to engage a different agency at the end of the contract.

Mailman

[Mailman]

erm..i've opted out verbally, but not yet signed anything yet....i was told that via opting out, its a better indicator for being outside IR35...

???

There are so called businessmen on this forum that claim to run their business like a business BUT when it comes to protecting their shareholders profits they completely and utterly fail them by opting out of the regs.

Think of it this way, you are a business and its in your interests to maximise profits for your shareholders. This should also mean using the laws of the land to their fullest advantage to ensure your shareholders profits are not in anyway threatened by dodgy f8ckers who pretend to be agents

Mailman

[tim123]

Which means it is unenforceable.

Absolute rubbish.

I'll repeat (more or less) what I said before.

A penalty clause IS enforcable if the penaly sought is either: the exact amount lost (to be determined at the point of the loss), or a reasonable pre-estimate of the average loss.

In this case the agency are asking for the first. It is only the mechansim of determination that is in question.

A penalty clause isn't unenforcable in principle. It is only unenforcable if the penalty sought is disproportionate.

tim

[boredsenseless]

A penalty clause IS enforcable if the penaly sought is either: the exact amount lost (to be determined at the point of the loss), or a reasonable pre-estimate of the average loss.

I'm also sure that the recent concept of penalty charges being unenforcable (i.e. credit card charges) is applicable more to consumers than businesses, so go ahead if you want to argue you are an individual not a business if you want to see where that gets you in other discussions such as IR35.

Put simply, you are a business and you are in a position to negotiate your own contracts, if you don't like a clause remove it or reject the contract don't whinge about unenforcable clauses later. It just isn't grown up.

And MAILMAN, opt-in opt-out is a business decision and frankly only applies if you are a BOS contractor, if you do true B2B i.e. fully costed packages of work for a fixed price then its meaningless.

It most definetly isn't a means of protecting shareholder value, its simply another example of the Nanny State.


--- Just re-read this and it seem liek I'm getting at Tim, I'm not its just his post on a similar vein was the best description of penalty clauses.

[tim123]

The rule that an unjustified charge for a breach of contract unenforcable is applicable to all contracts.

It's just that it's expected that a Business will be in a position to take their own action against the other party whereas a consumer is not.

tim

[Denny]

There are so called businessmen on this forum that claim to run their business like a business BUT when it comes to protecting their shareholders profits they completely and utterly fail them by opting out of the regs.

Think of it this way, you are a business and its in your interests to maximise profits for your shareholders. This should also mean using the laws of the land to their fullest advantage to ensure your shareholders profits are not in anyway threatened by dodgy f8ckers who pretend to be agents

Mailman

Could have said it better myself.

[Mailman]

And MAILMAN, opt-in opt-out is a business decision and frankly only applies if you are a BOS contractor, if you do true B2B i.e. fully costed packages of work for a fixed price then its meaningless.

Absolute twaddle...what REAL business would not do everything possible to protect its profits?

Mailman