Reply to: Is an agreement valid if the other party hasn't paid anything?

[handyandy]

I think the OP had in mind whether the contract was valid under English law based on whether there had been a 'consideration' for his services. It's a bit of a tricky one as there does not seem to have been any actual execution of consideration (i.e. no money was paid to him) but there is a promise of future payments in the form of royalties or share of profit. However, the only person who can enforce a contract is one that has made the consideration and I think you may find that you could get this contract declared null and void on the basis that you have not yet received any consideration and see no reasonable circumstances in which you will do so in the future. You would then also get to keep the software and do what you wanted with it.

However, if this is a 'friends' thing it may be worth just agreeing with the other party to forget the whole thing and tear up whatever contract was in place.

[fool]

Thanks for the replies (even the funny pants pulling down one!).

Yes there is a termination clause so I'm not too worried about being forced to work until I'm 100! The agreement is one of those 'made between friends' ones unfortunately so I was not as thorough as I would have been at other times. The software can't be used without the Azure backend which I run, so they have no way to use it without my knowledge.

My question is really about the payment aspect not being met by them - and whether legally speaking them paying me zero as a percentage of the proceeds (0), is the same as them not paying me if we had we agreed on a fixed cost. If it treated the same, then it would be breach of contract and presumably the contract could be rescinded?

My guess is would probably be treated differently, and I'll definitely be getting advice, but I just wondered if anyone had any experience of this specific point?

Thanks again.

I am not a lawyer but legally speaking, contracts have to be mutually beneficial and thus one doesn't seem like it is, so it'd be null and void. I guess the exception to this would be if statement of interest, and thus you'd probably want to do the work or would arguably be legally responsible for their loss, assuming the contract would otherwise be considered fair.

I guess you want to keep the software and sell it elsewhere? This seems less likely.

[SueEllen]

I could look at the contract/agreement for you, to give you another view, if you want?

Are you a lawyer?

[stillooking]

Hi,

I'm a software developer and entered into an agreement whereby I would write a client an application, provide support for it, and provide reasonable updates in return for being paid a percentage of the proceeds from the selling of the application. The client would own the IP of the software. 3 years down the line, I'm being asked to upgrade the app again to work with the latest operating systems.

So far the app has been sold to zero companies and hence I've not been paid anything for any of the work I've done on it. Until this point I've been happily updating the app when necessary but I believe it's time to call it a day.

Effectively you could argue that I have been paid my percentage, but of zero!

Would the contract still be valid even though no money has changed hands? ie I no longer want to be liable for supporting or upgrading it, and would like to retain the IP.


Thanks

I could look at the contract/agreement for you, to give you another view, if you want?

[Pondlife]

The client would own the IP of the software.

<snip>

Would the contract still be valid even though no money has changed hands? ie I no longer want to be liable for supporting or upgrading it, and would like to retain the IP.

Did you explicitly sign away the IP? Otherwise as the developer it probably is still yours. That point may be a bit more tricky.

This bit is critical IMHO. Who owns the IP for the app currently?

[VectraMan]

My question is really about the payment aspect not being met by them - and whether legally speaking them paying me zero as a percentage of the proceeds (0), is the same as them not paying me if we had we agreed on a fixed cost. If it treated the same, then it would be breach of contract and presumably the contract could be rescinded?

I think (and I'm not a lawyer) that they haven't breached the contract, but if the contract is you do x and get y in return then you should be able to stop doing x and stop getting y without it being a breach, unless there's something that says otherwise. And if the service doesn't have a fixed term and an actual payment no judge or court would uphold it because it amounts to slavery. But this advice is worth what you paid for it.

At the end of the day they could sue you for damages but what are the damages if they haven't sold anything? I would walk away having gained some experience about contracts between friends.

Did you explicitly sign away the IP? Otherwise as the developer it probably is still yours. That point may be a bit more tricky.

[SueEllen]

Thanks for the replies (even the funny pants pulling down one!).

Yes there is a termination clause so I'm not too worried about being forced to work until I'm 100! The agreement is one of those 'made between friends' ones unfortunately so I was not as thorough as I would have been at other times. The software can't be used without the Azure backend which I run, so they have no way to use it without my knowledge.

My question is really about the payment aspect not being met by them - and whether legally speaking them paying me zero as a percentage of the proceeds (0), is the same as them not paying me if we had we agreed on a fixed cost. If it treated the same, then it would be breach of contract and presumably the contract could be rescinded?

My guess is would probably be treated differently, and I'll definitely be getting advice, but I just wondered if anyone had any experience of this specific point?

Thanks again.

If they haven't sold the software then they have stuck to what has been contractually agreed between you.

Just terminate the contract and treat the experience as a learning opportunity.

[swede]

Thanks for the replies (even the funny pants pulling down one!).

Yes there is a termination clause so I'm not too worried about being forced to work until I'm 100! The agreement is one of those 'made between friends' ones unfortunately so I was not as thorough as I would have been at other times. The software can't be used without the Azure backend which I run, so they have no way to use it without my knowledge.

My question is really about the payment aspect not being met by them - and whether legally speaking them paying me zero as a percentage of the proceeds (0), is the same as them not paying me if we had we agreed on a fixed cost. If it treated the same, then it would be breach of contract and presumably the contract could be rescinded?

My guess is would probably be treated differently, and I'll definitely be getting advice, but I just wondered if anyone had any experience of this specific point?

Thanks again.

[SlipTheJab]

Surely the agreement must have a cut off point or will you still be doing free updates from your nursing home when your pushing 90?!

[radish2008]

If all the terms are being met then it's valid. Nothing breached. Why are they spending time and money on something they haven't sold?

Time to have a look at your termination clauses.... You did put some in didn't you?

You've had your pants well and truly pulled down by the sound of it.

Because maybe they're using it. Free software by the sounds of it.

I'd pull out, force their hand and see what happens.

[Pondlife]

You signed a contract to provide support with no end date and not tied to a specific OS?



Is there no kind of termination clause at all?

[LondonManc]

Is it a reasonable update as you said you've committed to, or is it significant for little sign of reward?

Have you seen the companies accounts and/or sales figures?

[Lance]

My advice would be to update the software but charge them a fixed fee for doing it.
You can explain politely that you don't really see them selling it, and are not willing to work at risk any longer. So no cash no upgrade.

[northernladuk]

If all the terms are being met then it's valid. Nothing breached. Why are they spending time and money on something they haven't sold?

Time to have a look at your termination clauses.... You did put some in didn't you?

You've had your pants well and truly pulled down by the sound of it.

[SueEllen]

Depends on the contract. No one can tell you with seeing it how you legally get out of it.