Early Termination

[tim123]

So, a legal contract is agreed between 2 parties (the fact that it is a PO makes it no less of a contract).

One party says to the other: "We have decided we can't be arsed to honour this".

The little guy says "I'm not just going to roll over and die"

So the littly guy is the one who is not fit to be in business ???

Can't follow it myself.

You posted yourself that he is required to mitigate his losses.

The new PO doesn't start until April, therfore he has three weeks to find a new job.

He says that he has turned down other opportunities, and given that he can't start until April he must have been offered these jobs by people who were prepared to wait six weeks for him to start. If companies are willing to offer jobs to people who can't start for six weeks, there must be an awful lot of suitable jobs around. Thus ,mitigating his loss will be as easy as falling off a log and his recoverable loss will be zero.

It's the fact that he doesn't understand that he hasn't actually lost anything recoverable that is the problem, not the suggestion that he should just roll over if he had lost something.

tim

[ASB]

You posted yourself that he is required to mitigate his losses.

The new PO doesn't start until April, therfore he has three weeks to find a new job.

He says that he has turned down other opportunities, and given that he can't start until April he must have been offered these jobs by people who were prepared to wait six weeks for him to start. If companies are willing to offer jobs to people who can't start for six weeks, there must be an awful lot of suitable jobs around. Thus ,mitigating his loss will be as easy as falling off a log and his recoverable loss will be zero.

It's the fact that he doesn't understand that he hasn't actually lost anything recoverable that is the problem, not the suggestion that he should just roll over if he had lost something.

tim

I agree, but the opportunities he turned down in order to accept this one are simply history.

The question is whether he can find other things now and the end of June.

If he can't then the slack time spent between April and June is a genuine loss and it is attributable to the clients breach (proving it is a *very* different matter of course).

I would agree that he ought to be able to mitigate the loss to zero. There is however a possibility he cannot.

[jh0711]

no legs to stand on - it is like ordering something and then cancelling it - maybe you get a cancellation charge but that would be it.

need to get out of the mindset that there is some form of obligation from the end client to pay you for anything other than what is stipulated in the contract.

No contract therefore no breach of contract

probably

[Flubster]

Baaah

[ASB]

No contract therefore no breach of contract

But there *is* a contract. The purchase order is a contract.

[ASB]

MOO!

People keep banging on about MOO (for a number of reasons of course). The fact of the matter is that if there is no MOO then there is no contract. Honestly, it is that simple.

What I aasume you are really talking about (asuming you are not just turning bovine [humour attempt]) is what was referred to as "irreducible minimum". It needs more than MOO. If it was just MOO every time you go to the shop and buy something you could be thier potential employee.

It also needs sufficient control and a requirement for personal service.

Now, given the OP hasn't started, the only documentation is a purchase order then there is no way on earth that any sane judge (oxymoron alert) would find a compensatory payment in those circumstances created the irreducible minimum and thus payments under it could be IR35'd.

To be in danger you absolutely must be controlled, required to give personal service and MOO. The only way to get rid of the latter is not to have any contract of any description, in this case you don't need to be paid. But if you are an implied contract has been created anyway.

The last sentence of this link: http://www.hmrc.gov.uk/manuals/esmmanual/esm7240.htm

"The irreducible minimum for the existence of a contract of employment should not be confused with the irreducible minimum of obligation".

[ASB]

no legs to stand on - it is like ordering something and then cancelling it - maybe you get a cancellation charge but that would be it.

Pretty much, the cancellation charge needs to be explicitly written into the contract - e.g. first night room rate if no show or cancel after 6pm. If it is not the injured party is only entitled to charge to cover their losses. That would not be the price of the room.

You could argue - and it has been done sucessfully in court - that the appropriate loss to the hotel in this instance was thier profit. Breakfast wasn't taken, laundry was not required etc etc. [It was after losing in court a few times that hotels woke up to the idea that simply charging people for a night if they didn't turn up after booking was maybe not such a good idea without updating their conditions - and notifying people at the time of booking].

The principle is that if there is nothing specific in the contract then it's off to sue grabbit and runne to argue about the actual loss in front of my lordship.

[tim123]

But there *is* a contract. The purchase order is a contract.

But it doesn't contain the terms of that contract.

The T&C could contain the clause that the contract can be cancelled with a week's notice (or any one of 100 other ways).

We just don't know.

tim

[MarillionFan]

"But there *is* a contract. The purchase order is a contract."

An internal purchase order gets raised and then cancelled. No contract, but someone told the guy he would get the work.

Guy comes into my shop and says, yeh. I'll buy that dining table from you. Ok I'll sell it to you says I. I'll draw up an invoice, you pop along to the bank and get me the money.

Bloke never comes back.

WOW! I should find him and sue him. I have a verbal contract. He told me he had the money and would buy it. I put it aside and I could have sold it to the next person who came along!!!!!

God aren't some of you complete tossers on here.

[ASB]

WOW! I should find him and sue him. I have a verbal contract. He told me he had the money and would buy it. I put it aside and I could have sold it to the next person who came along!!!!!

Whether you should is different to whether you could.

But this is something that restaturants are increasingly doing. Whether it's worth it is a different matter of course.