Contract dilemma

[gingerjedi]

I've been on the bench for 17 weeks with only a few sniffs of interest, now I have one contract in the bag and another much more lucrative potential role in the pipeline but no offer as of yet, if I accept the first contract over the phone am I under any legal obligation to follow through? Also to make maters worse if I accept the first offer and ditch it before the start date I know someone else will miss out, should I worry about that or just look after number one??

[MrRobin]

Hmm a dilemma indeed. I think that acceptance over the phone is binding, but unless someone is recording it, how would it ever be proved?

Ordinarily, you should ofcourse be professional and either take the risk and turn down the first one, hoping that the second is a winner or if you take the first role then honour it and let the other potential contract know you're off the market. But... 17 weeks is a looonng time and understand you don't want to be left without either.

Can you buy some more time with contract 1?
Can you hurry up the decision process of contract 2?
Can you negotiate with contract 1 so the rate gap is narrower?

[gingerjedi]

The rate gap is about 40%!! I asked if there was any room for improvement before I went for the interview but was met with a firm no.

I need to try and buy some more time with contract 1 but how can I do that without the agent smelling a rat?

I reckon I could get a decision on contract 2 fairly quickly as I am in direct contact with one of the managers of the project, the trouble is he wants me to apply via their agent so it's all be above board, I left a message with the agent but I still waiting for her to reply, meanwhile the agent from contract 1keeps ringing and leaving messages.

I know it’s a good dilemma, but being a conscientious sort I don't like to let anyone down.

[BrilloPad]

I've been on the bench for 17 weeks with only a few sniffs of interest, now I have one contract in the bag and another much more lucrative potential role in the pipeline but no offer as of yet, if I accept the first contract over the phone am I under any legal obligation to follow through? Also to make maters worse if I accept the first offer and ditch it before the start date I know someone else will miss out, should I worry about that or just look after number one??

Personally I always accept subject to signed paperwork being completely to my satisfaction.

Once I went for interview and pimp asked afterwards "If offered would you accept" to which I replied "almost certainly" or something like that. I was offered and pimp tried to hold me to it! I had a better job. Since then I am always alot more careful about what I say.

[moorfield]

Personally I always accept subject to signed paperwork being completely to my satisfaction.

Agreed BP - always "subject to contract" from me too.

[gingerjedi]

The agent just caught me on my landline so I had no choice but to sound enthusiastic and accept, however it was subject to me providing certain details so as long as I withhold them I guess I'm safe for now.

[Dow Jones]

Seen as procrastination - read article

The words "subject to contract" are universally used by the sender of a document as a means of avoiding the recipient of that document being able to accept the terms of the "offer", and thereby bind the sender to those terms. A recent case has however highlighted the dangers of assuming that the use of such terminology is the end of the matter. It serves as a cautionary tale to all of us that if parties then proceed to act on the basis that the terms contained in the document are binding, a Court may then determine that they are.

A proposal from one party to another of terms clearly marked “subject to contract” has recently been found to be a valid and enforceable contract. On 2 February 2005 in The Rugby Group Limited v ProForce Recruit Limited [2005] EWHC 70 (QB), the high court allowed an appeal from The Rugby Group ("Rugby") to grant summary judgment against ProForce Recruit Ltd ("ProForce") in its claim for breach of contract.

ProForce had claimed that, despite the “subject to contract” heading, the document marked "Subject to Contract" was enforceable because the parties had then acted in a way which was consistent with the agreement set out in the document being in force. It also claimed that Rugby had breached it by failing to honour the “preferred supplier status” conferred on ProForce in one of the proposed terms. For the purposes of this note, it is the status which the Court accorded to the "subject to contract" document which is of importance.

The Court accepted that in general, except in a very strong and exceptional case, the words “subject to contract” would usually prevent a binding agreement coming into force. It appears, however, that the Court regarded this case as “strong and exceptional”. The reason the Court gave in this instance was that after the document was signed, the parties then did “those things that the agreement contemplated that each should do for the benefit of the other”. The Court therefore found that the parties had by their actions entered into an implied binding contract on the terms of the agreement. This is consistent with a long line of authorities which have held that a formal offer (i.e. one that is not "subject to contract") could be accepted by conduct.

It seems then that the standard insertion of the words “subject to contract” at the top of the first page of a document may actually be held to mean “not subject to contract” if the parties then act as if the proposal were a binding agreement. This case is a strong judicial endorsement of “substance over style” in commercial contracts and should serve as a warning to those who, after having sent such a document, then fail to complete and finalise agreements before actually beginning work under the auspices of the "subject to contract" document. If a final agreement is never subsequently concluded, the Court may bind the parties to a "subject to contract" document as the best (possibly the only) evidence of what the parties intended to be the terms of the agreement between them.

[Dow Jones]

The agent just caught me on my landline so I had no choice but to sound enthusiastic and accept, however it was subject to me providing certain details so as long as I withhold them I guess I'm safe for now.

Could work both ways - client hasn't been informed of your 'wish' and stand-by No 2 candidate is waiting on the wings.

[Emily]

It's not great practice to accept with a view to turning it down should something better come along, but I wouldn't worry too much. It happens all the time, and the recruiter/client cannot force you to take the role by any means.

[mwoz03]

How to decline a job offer

I am in a similiar situtation, have accepted first offer and the same day found a better deal with an offer.