Substitution Clause

[meanttobeworking]

I'm in the final throes of negotiating a new contract. Had the contract reviewed and although it was generally quite strong, there were a number of recommendations for improvements. Client (direct) has been very accommodating and agreed to all of them bar one, which typically is one of the more important ones.

Review said that substitution clause was "weak" and could do with strengthening, but client keen to stick to wording recommended by their solicitor.

My options are a) go with it on the basis that MOO clause is strong, lack of control clauses are strong, and at least there IS a substitution clause in place, or, b) turn down the contract, which seems a bit extreme.

I just wondered how the rest of you guys would approach if?

[TheCyclingProgrammer]

You only need to pass one of the big three tests so I wouldn't worry too much about the RoS clause. IMO relying on RoS clauses over and above everything else is a mistake - its easy to get one in your contract and your client to agree to it, even if reasonably unfettered, but hard to say if they'd ever go for a substitute in many cases.

If the rest of your contract is fine and you're confident when it comes to MOO and D&C then don't worry about it.

[northernladuk]

Weak doesn't also mean it's a complete fail. I am guessing the client can refuse the sub without reason. Either way, what Top says and get IPSE+ and even TLC35 from QDOS if you Warwick worried.

[meanttobeworking]

Thanks both, really appreciate the replies. I was thinking the same myself, but didn't want to be too biased. I have PCG+ and TLC35 too, I'm just one for trying to cover every base!

Thanks again.

[d000hg]

If the sub clause is just there for the paperwork and the client would never consider accepting a sub, it's a worthless clause.

[TheFaQQer]

Weak doesn't also mean it's a complete fail. I am guessing the client can refuse the sub without reason. Either way, what Top says and get IPSE+ and even TLC35 from QDOS if you Warwick worried.

Got to love predictive text

[northernladuk]

Got to love predictive text

It's a complete mother forklift.

[meanttobeworking]

If the sub clause is just there for the paperwork and the client would never consider accepting a sub, it's a worthless clause.

The annoying thing is, they're actually ok with the concept of using a sub, it's more just the wording of the clause puts them a little more in control of it than ideal.

[jamesbrown]

You only need to pass one of the big three tests so I wouldn't worry too much about the RoS clause. IMO relying on RoS clauses over and above everything else is a mistake - its easy to get one in your contract and your client to agree to it, even if reasonably unfettered, but hard to say if they'd ever go for a substitute in many cases.

If the rest of your contract is fine and you're confident when it comes to MOO and D&C then don't worry about it.

Agree with CP. Reality on the ground matters first, then the contract. It's sufficient to demonstrate one of the three pillars and, of those, I'd place much greater emphasis on D&C, mainly because it's easier to evidence on the ground. Even though RoS is about the "right" to substitute, it needs to be demonstrable as a realistic expectation.

[jamesbrown]

The annoying thing is, they're actually ok with the concept of using a sub, it's more just the wording of the clause puts them a little more in control of it than ideal.

Then you're fine. That's what matters. Perhaps they'd be more comfortable clarifying this reality in a Confirmation of Arrangements, which has no legal standing? Obviously, you don't want a CoA that contradicts the contract, but IMHO it can be valuable if it clarifies the reality.