Breach Of Contract Question.

[ahoustondj]

Okay, we all know that good DJs are supposed to carry backup gear to their gigs, just in case something was to happen.

Let's suppose, that it was not included in the contract that you will be supplying backup gear, then let's say you did not carry any backup gear, do you think it'll be a breach of contract, if something was to be blown out and you could not continue your gig? Can you legally be sued for damages?

Again, take into consideration these few elements,

1. That backup gear was not promised in the contract nor implied verbally by the DJ.

2. That through no fault of your own, something major, blew out and you could not continue.

Case in point, have you ever seen bands carry around backup gear such as drum sets, etc.?

Does an entertainer such as a harpist carry around a spare harp? Maybe a few strings as spare LOL.
What do you think?

 

[Sounds To Go]

Great Question!

...do you think it'll be a breach of contract, if something was to be blown out and you could not continue your gig?

Sure. If it prevents you from fulfilling your obligations under the contract it very well could/would find you in breach.

Trying to convince a judge that equipment failure, as "random" as we think it to be or know it to be from experience, is an "Act of God" is not something you will likely succeed at.

Can you legally be sued for damages?

That depends. Is "Breach of contract" a type "Damage?" I would tend to think no.

In my contract, it is stipulated that in all cases, the dj's liability for damages for breach of contract are limited to the dollar amount of the contract. ie, "Here's your money back, now go away." Of course actual DAMAGES to person or property arising from my performance is another story, but thats where liability insurance comes in.

That backup gear was not promised in the contract nor implied verbally by the DJ.

Whether or not the stipulation re backup equipment was in the contract doesnt matter - the end result is the same - you are in breach if you fail to perform your obligations under the contract. The "why's" and "hows" are the kind of thing that *may* come into play if you happen to get a judge who is in a REALLY GOOD MOOD that day!

2. That through no fault of your own, something major, blew out and you could not continue.

Again, trying to convince a judge that equipment failure, as "random" as we think it to be or know it to be from experience, is an "Act of God" is not something you will likely succeed at.

Case in point, have you ever seen bands carry around backup gear such as drum sets, etc.?

They are not released from their obligations to perform, or from the consequences of not being able to unless the reason is truly deemed to be something along the lines of an Act of God.

Does an entertainer such as a harpist carry around a spare harp? Maybe a few strings as spare LOL. What do you think?

If it is a harpist worth their salt, it would take a LOT of strings breaking for anyone to even notice - if at all!

Bottom line: Just because these people you mention to do not carry a duplicate EVERYTHING as a contingency plan does NOT release them from their obligations under their contract, nor protect them from their failure to perform under the same.

My advice would be to work with a business lawyer to include clauses in your contract that will limit your liability in all cases to the greatest extent that is possible in your jurisdiction/state, etc.

 

[Bill Hollick]

I think someone could bring a lawsuit against a DJ who contracted to provide music for an event and then failed for whatever reason to provide music.

I also think there a lawyer who would be willing to represent the person who decides to sue the DJ in question.

Who would win the lawsuit is an altogether different question.

Keep in mind, I'm not a lawyer and I don't even play one on TV but you asked, what do I think.

 

[Sounds To Go]

Keep in mind, I'm not a lawyer and I don't even play one on TV but you asked, what do I think.

What he said!

 

[ahoustondj]

Great Question!



Sure. If it prevents you from fulfilling your obligations under the contract it very well could/would find you in breach.

Trying to convince a judge that equipment failure, as "random" as we think it to be or know it to be from experience, is an "Act of God" is not something you will likely succeed at.



That depends. Is "Breach of contract" a type "Damage?" I would tend to think no.

In my contract, it is stipulated that in all cases, the dj's liability for damages for breach of contract are limited to the dollar amount of the contract. ie, "Here's your money back, now go away." Of course actual DAMAGES to person or property arising from my performance is another story, but thats where liability insurance comes in.



Whether or not the stipulation re backup equipment was in the contract doesnt matter - the end result is the same - you are in breach if you fail to perform your obligations under the contract. The "why's" and "hows" are the kind of thing that *may* come into play if you happen to get a judge who is in a REALLY GOOD MOOD that day!



Again, trying to convince a judge that equipment failure, as "random" as we think it to be or know it to be from experience, is an "Act of God" is not something you will likely succeed at.



They are not released from their obligations to perform, or from the consequences of not being able to unless the reason is truly deemed to be something along the lines of an Act of God.




If it is a harpist worth their salt, it would take a LOT of strings breaking for anyone to even notice - if at all!

Bottom line: Just because these people you mention to do not carry a duplicate EVERYTHING as a contingency plan does NOT release them from their obligations under their contract, nor protect them from their failure to perform under the same.

My advice would be to work with a business lawyer to include clauses in your contract that will limit your liability in all cases to the greatest extent that is possible in your jurisdiction/state, etc.

Well I should have added that yes, they are still obligated to make the performance. TheClient can get their money back if you fail but what if the gig is 4 hours long and you only have 45 minutes to go? Is the amount to be reimbursed pro rated?

 

[Sounds To Go]

Well I should have added that yes, they are still obligated to make the performance. TheClient can get their money back if you fail but what if the gig is 4 hours long and you only have 45 minutes to go? Is the amount to be reimbursed pro rated?

I would guess the legal answer is yes... but I wouldnt even go there - I'd prorate just because I felt bad.

Also, this depends on how you word your agreements and what are they paying for?

Do you specify a flat rate? A set number of hours start at x and ending at y? Are you one of the "Up TO X hrs" guys for a flat rate?

How you approach your pricing structure can be a determining factor here...

Myself I would pro-rate/discount/refund amount - whatever.

But as we say here... YMMV.

 

[Jon Tuck]

Canute does this have anything to do with the saturday night ordeal?

 

[Cap Capello]

Depends on the rest of the contract. Just because backup equipment is not mentioned (which is a policy, not a contract clause in most cases) doesn't mean there are no other clauses and considerations that override the mere lack of backup equipment.

What happens if they (the client) rented the gear and it failed. Did the client rent extra equipment just in case? Most folks charge less than what the sound system and the music collection would cost to rent, let alone delivery, setup, operation, break down, and take away. What the hell do these customer expect for a couple hundred bucks. If there is no contract provision for backup equipment to continue performance, what the hell is the client to expect? Shame on them for not asking.

Why are DJs held to higher "buyer beware" conditions than the rest of world?

That'd be my argument if I wasn't already completely contractually protected.

 

[ahoustondj]

I would guess the legal answer is yes... but I wouldnt even go there - I'd prorate just because I felt bad.

Also, this depends on how you word your agreements and what are they paying for?

Do you specify a flat rate? A set number of hours start at x and ending at y? Are you one of the "Up TO X hrs" guys for a flat rate?

How you approach your pricing structure can be a determining factor here...

Myself I would pro-rate/discount/refund amount - whatever.

But as we say here... YMMV.

Well I think that it is only fair that the unperformed portion needs to be refunded to the client. At my discretion, depending on the client/event, I may give a full refund. So far I have not had any major breakdown in music equipment. Yes, I do charge extra for overtime hours. My prices vary by amount of equipment needed, duration of event, ease of access to the venue and distance of travel to the venue. Weddings have an additional fee due to the fact that there is a lot of prep time before the event. If they don't get too involved and just give the selected songs for the wedding agenda, then the extra fee is lessened.

I do not put arrive time on my agreement, just start and finish time. I do not put what I'll wear on the agreement nor do I ask what I have to wear. I do ask about the dress code for the party and then dress appropriately. Weddings, I wear a dark double breasted or business suit. The more I promise in writing the more burden I'll have to bear! I believe in keeping it simple. if it is not spoken or written then it cannot be misinterpreted.

 

[jokerswild]

I have a line in my Terms of Agreement that covers such instances... the exact verbiage escapes me at the moment but it boils down to this...

Once setup and the event is started that constitutes the completion of the Company's obligation.

It's pretty cut and dry as this covers me should the client decide to cut things short or something beyond my control cuts things short....

The fault may not be even mine should something blow... the venue could have bad power, there could be storms brewin, the power could go and a spike could kill things... these are those Act of God situation... and are dually covered in the Terms of Service.

Could they attempt to sue.... sure... would they win, I highly doubt it unless they have a sympathetic judge who is willing to throw out the contractual agreement they signed.

 

[jokerswild]

Well I think that it is only fair that the unperformed portion needs to be refunded to the client. At my discretion, depending on the client/event, I may give a full refund.

Why? You showed up you played and something happened that was beyond your control or ability to predict.... not your fault and if your contract is worded correctly any judge will see it as a completed event per your contract.

 

[ahoustondj]

Depends on the rest of the contract. Just because backup equipment is not mentioned (which is a policy, not a contract clause in most cases) doesn't mean there are no other clauses and considerations that override the mere lack of backup equipment.

What happens if they (the client) rented the gear and it failed. Did the client rent extra equipment just in case? Most folks charge less than what the sound system and the music collection would cost to rent, let alone delivery, setup, operation, break down, and take away. What the hell do these customer expect for a couple hundred bucks. If there is no contract provision for backup equipment to continue performance, what the hell is the client to expect? Shame on them for not asking.

Why are DJs held to higher "buyer beware" conditions than the rest of world?

That'd be my argument if I wasn't already completely contractually protected.

You said it my friend! I could not have said it any better! When DJs start promising the world or giving away the store, clients get spoiled and then expect it from other DJs too. There are times I do not even have a written contract. Know why? I get prepaid and just give a receipt! Its not always that I can get away with this practice though.

 

[ahoustondj]

Why? You showed up you played and something happened that was beyond your control or ability to predict.... not your fault and if your contract is worded correctly any judge will see it as a completed event per your contract.

Again, in all fairness (But this is just me, no right or wrong here). If the gig was for 4 hours and ended prematurely because of a breakdown on my part, I think the client deserves a partial refund. if they ended the function sooner then guess what? This DJ gets to go home early!

Tip. If you want overtime, try playing the hottest tunes just before end time. This works best at holiday parties at private venues.

 

[jokerswild]

You said it my friend! I could not have said it any better! When DJs start promising the world or giving away the store, clients get spoiled and then expect it from other DJs too. There are times I do not even have a written contract. Know why? I get prepaid and just give a receipt! Its not always that I can get away with this practice though.

What scares me about that you or anyone would work without a net.... a contract is there to protect you and your client, but mostly you.

If you got caught with your britches down and a client did decide to take you to court over whatever... you end up with a he said/she said scenario and guess who's gonna win....... most likely not you.

 

[ahoustondj]

Canute does this have anything to do with the saturday night ordeal?

Nahhhhhhh! Not at all! Last weekend went great. Toga Party on Friday was not well attended because of severe thunderstorms. The Club owner and I are still friends.

 

[Cap Capello]

There are times I do not even have a written contract. Know why? I get prepaid and just give a receipt!

That is your business choice, one that should be reconsidered.

 

[jokerswild]

Again, in all fairness (But this is just me, no right or wrong here). If the gig was for 4 hours and ended prematurely because of a breakdown on my part, I think the client deserves a partial refund. if they ended the function sooner then guess what? This DJ gets to go home early!

Tip. If you want overtime, try playing the hottest tunes just before end time. This works best at holiday parties at private venues.

I agree if it is your fault like maybe you accedentally hit Format C:\ or threw your discs accross the room, or kicked in your speakers in a fit of rage... now is that gonna happen nope.

If your speakers blow.... or an amp fries... let them prove you some how neglected your equipment and a refund will follow. Otherwise sorry Charlie.

Your contracts are there for a reason. You can't predict an unfortunate situation. You can do things such as preventitive maintenance to ensure equipment is performing on par.... and of course you should document every thing you do to your equipment from warrenty work to general up keep.

Armed with these records and a solid contract and it will be like walking into court driving an armored tank.

 

[ahoustondj]

That is your business choice, one that should be reconsidered.

You are correct again but I'll keep it short and simple. No never ending promises. Ohhh! BTW, when the agency gets me gigs, the contract that is used is theirs. For my agents, I use mine.

 

[jokerswild]

The problem with a simple handshake agreement is 9 times 10 the client intues or infers more from the handshake then is implied or verbalized.

Ever here the saying, "People hear what they want to hear." ?

With a contract that spells out your duties as the company and the clients duties as the purchaser leave little gray area to contest. Just my 2 cents.

 

[ahoustondj]

The problem with a simple handshake agreement is 9 times 10 the client intues or infers more from the handshake then is implied or verbalized.

Ever here the saying, "People hear what they want to hear." ?

With a contract that spells out your duties as the company and the clients duties as the purchaser leave little gray area to contest. Just my 2 cents.

After 31 years doing this i guess I am pretty lucky, eh! See! The luck of the Irish! My Mother was Irish, red flaming hair and green eyes. Dad was Norweigan, Blonde hair and blue eyes. Yeah, I know! Famous question, what ever happened to me eh? http://www.ourdjtalk.com/album.php?albumid=34&pictureid=367 Oh by the way! I was not adopted, natural born. Reason why.......check back later for the answer.