Actually, some publicity in this matter would be a public service, possibly preventing such assholes from trolling undergrads for cheap labor and abuse.
Richard - I call bullshit. Unless there's some express policy banning them from engaging in business transactions on school premises, what stops them from getting paid for their work? It sounds like you're spinning some ideas about their legal rights off the cuff.
Oct 7, 14 9:07 pm ·
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Alternative:
Actually what I am talking about is real. It is illegal to establish and conduct a business on property that you do not have ownership of or authorization to conduct business on the premises. You may get away with it if it doesn't rise to complaints so I advise not to cause a big fanfare. If you read what I said, to do business legally, you need to have legal permission. Getting away with illegal acts doesn't make it legal. Got it?
If it became aware of in a lawsuit, it can result in the contract being deemed illegal because the business is illegal and conducted under illegal premises. In others, you better do everything legally correct or you can face your contract being deemed null and void and therefore no ability to collect.
When the college or university has not expressed authorization, they can become defacto liable. This is a liability risk to the institution and they may have issues with it considering there is no legal agreement that would indemnify the institution. The institution may have issues. That is why they may have permits or otherwise.
It is not lawful to use college equipment to carry out a business without authorization. Use your own. If you can't afford to do so and be in business then you are not suppose to be in business. Therefore, get a job.
That is why running a real business cost money but students doing gigs without official authorization are undercutting people because they basically stole college equipment for business use by using it without permission for commercial/business use.
I said, some colleges and universities have issues. Hell, look at what happened when the founder of facebook started their business. He almost got expelled.
If it was specified or implied in their verbal contract that they would be using school equipment then it could very well be an illegal contract. If it wasn't, however, then their (un)lawful use should be a separate issue from their service and payment, and the contract would be good. By drawing attention to it all they could very well open themselves up to something from their school, but I believe they could still collect from Scumbag Architect. I'm in a different country, though, so it could be different.
In conclusion, if you did use school equipment against policy it could be in your (academic) interest to let this drop. The lesson you should take from it, though, isn't that it's OK to be stiffed on a contractually specified fee, but that you should always read the fine print, operate your business legally (so that you can legally collect), and get everything in writing.
If you guys used school equipment to engage in a for-profit business transaction without written permission from the school, then I'd let this drop. You can't use school laser cutters to build a model then charge $2,000.00 for it; and i'm willing to bet in your student code, policy, honor code, or w/e it's called, it explicitly states that school assets may not be used for business purposes.
^ That's my question too. The posters built a model per a verbal agreement. So far as we know, they performed at least 75% of their obligation. They aren't getting paid. It's not that complicated. Let's stop trying to be Philadelphia lawyers.
Richard - contract law varies state by state; Coco is right-- contract law is complicated (and I'm gonna make a wild guess and assume that s/he is in an Anglo-American jurisdiction).
Whether or not a school policy has a no-business policy, that fact doesn't necessarily invalidate the contract. The parties still arguably have a right to be compensated for their labor; their violation of school policy seems like a totally separate issue. Contracts are usually invalidated on illegality grounds when parties contract to engage in things like a drug deal or prostitution-- not merely for engaging in a commercial transaction at school. You're making these weird blanket pronouncements and don't seem to know the basics of contract law.
I'd actually urge the students to speak for the Dean and look for some student legal services available on campus. Do you guys have a law clinic that could help? This is a pretty straightforward contract dispute; there are obviously some wrinkles, but it seems resolvable. Miles Jaffe is a little bit aggressive in his points, but I think he's the one making the most sense in this thread.
Also, Richard, what does "to do business legally" even mean? In the US, we have something called "freedom of contract" - by and large, in unregulated industries (like model making), people can freely enter into commercial transactions as they wish without permission from the government.
I like Alternative's suggestion to speak with the dean. Not as an alternative to making the claim, but to support it. If the scumbag is an alumni this could have repercussions. In any case the dean could apply pressure that might resolve the matter very quickly.
Oct 8, 14 10:02 am ·
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......
Oct 8, 14 11:18 am ·
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Alternative,
If you violate the law to engage in a contract then the contract is illegal. There is no such rights under the Bill of Rights called "Freedom of contract" per se. There is NO SUCH THING as unregulated industries. All industries, businesses, etc. are regulated because they are subject to the laws of the authorities having jurisdictions and therefore has regulation.
The students know or reasonably should know by having the student handbook provided to them which indicates that school equipment for student use is for academic use only. That means, not to be used for commercial use.
Buy your own lazer cutter, rent a garage or workshop building somewhere in town and set up business there provided you got the zoning classification setup for your use.
It is against the law to engage business knowingly that you will be violating laws and violating them.
90% of student owned businesses ran on campuses are noncompliant illegal businesses because they don't comply with the laws, permits, business licenses, etc.
Did they get their business license? Two separate students formed a GENERAL PARTNERSHIP which requires a business license. In Oregon, you would need to register the business with the state. You need to have your business license with the city or county.
Did they go through that. You can't contract under law as a partnership unless you have your business licensed/registered and so forth authorizing one to engage as a business.
One can contract under the basis of this so called "freedom of contract" to do something like, "I'll buy you a cup of coffee" but they can't contract as a business for compensation unless he or she or they is/are legally established as a business and has authorized agreement with the institution to use the equipment of the institution for commercial/business use.
They also need to have a principal place of business for their business license.
One might want to keep a little low key.
It is clearly implied or reasonably implied that the school's equipment would be used to make the model since they would have been too loose lip about using the laser cutter here and so forth. This would have implied to the client that they had authorization to use the equipment for this use. Which is probably, FRAUD or MISREPRESENTATION by these student model makers because they don't have authorization for commercial use by the institution which is the proper channel for doing so.
In addition, they weren't a real business and violating local and state laws of engaging as a business without a business license.
The contract can be null & voided. More likely, they be fined and also the client can be freed from obligation to pay. It is better for the OP to let this one slide and correctly form a business. Get proper authorization and so forth or buy their own equipment to start their business and ideally, their own place of business and workshop.
Please cite to some statutory regime where doing business on campus is illegal. A student handbook is not law.
How are their actions fraudulent? Fraud would require knowing misrepresentation with an intent to induce the clients. The clients found them at their UNIVERSITY.
Are you just sitting at home, bored, making stuff up?
I'm with Alt and Miles - go speak with the dean or chair, chances are there was a lack of agreement on the quality of the model to be supplied. I would think it fair to expect to be reimbursed for the materials, but recouping all time associated compensation may be harder. Next time try to get them to provide the materials and a sample model to show quality and level of detail expected, and a contract or a basic description of what they're paying for in writing.
I made a model once for an outside client (non profit)while in school (made them buy the material upfront, but the quality may not have been par for what they wanted to do with it -marketing/fundraising- due to the materials used), and the dean was supportive as an 'outreach' type of thing. A few others made models for firms, but were essentially hired on as contractors, after the firms had seen their models for school projects and there was a clear communication on what level of detail and craftsmanship was required.
Richard - while a strict interpretation of the rules of the university and business regulations would forbid the aforementioned activities, it's not uncommon for this type of moonlighting to be occurring (which usually also against policy of many firms). Courts could rule either way.
talking to the dean is a good idea, after that I still think small claims court will get their attention.
Is this guys defense going to be the contract is void because the work took place in an area that was zoned incorrectly? good luck with that, and even if so, worth the minuscule risk
Oct 8, 14 12:19 pm ·
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Alt,
Schools/Universities policy & rules is essentially law (providing it doesn't contradict statutory laws because they are the government of their campus. Remember, a public institution for example is a government entity. Private colleges have case law as private owners right to establish their own "house rules" or "house laws" and the court shall enforce such "house law" as it is empowered by contract law AS LONG AS IT DOESN'T VIOLATE the Public codified laws and rules. On my own property I can establish my own laws/rules (house rules) that shall be followed and if you don't follow it, you can be expelled / removed from the premises. Those basic rules empowered in centuries long common law and our statutory laws, also applies to private colleges and universities and other private entities. It falls in the entitled right and enforced by the power of law of PROPERTY OWNER. The academic institutions make the rules in addition to whatever is under the state or city or county. I was on a campus not that long ago that has its own police. Here's the thing, when you apply to go to college or university, you agree to follow the rules of the institution. If you don't, you can be disciplined by the institution. It can result in expulsion if you make it rise to that level. In addition, unauthorized use of campus facilities can result in you being charged for tresspassing. In addition, use of college equipment without authorization can be charged as theft or unauthorized possession of equipment which is theft.
I wouldn't recommend discussing with the dean of the architecture program let alone the dean of students. Doing so raises attention to the enforcers of the institution's regulations.
That is why the bottom line suggestion and point is be careful and keep a low profile and let this issue slide becase collecting on this can raise bigger problems.
Schools/Universities policy & rules is essentially law
lol. that implies we don't elect our legislative bodies. do lawyers have to study university policy to pass the bar? do judges look to the student council for case precedent?
your use of capitalization helped me understand your point better. i think we should go to our 'no taxation without representation' protests since our elected legislative bodies have been usurped.
Let me clarify this concern. The way this process began was that one of the architects was friends with the co-manager of our shop, a paid employee by the university and not a student. He then handed off the project to us, as we were willing to build the model and were promised pay for our work. The building process took place during out vacation time, and if it were during school our hours would have been compensated by our shop. However, the shop was closed during so it became solely our gig.
We did not have a written contract, just a verbal agreement and an invoice for services sent over with details on costs, but no signature was collected. This invoice was then approved by our shop manager (not a student), so we did have full permission from the school to take it on and were expected to do so. After talking to our manager once they told us we weren't getting paid he wanted us to take it as a learning experience and he would help us out any way he could during the school year. I want to talk to him again and suggest filing a claim as well as possibly our dean afterward. He isn't around this week but I will keep this feed posted.
btw... the firm is jeff svitak for those that wanted to know
Also, it doesn't matter that you don't have anything in writing. A contract doesn't refer to the written piece of paper, it's just the agreement. The paperwork is just a memorialization of the contract, itself. Make sense?
Oct 8, 14 1:57 pm ·
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Alt:
Public college/institutions have a public body of elected officials that oversees them. In addition, private entities can enact their own "house laws/rules" and when you applied to a university/college, you signed a contractual agreement to follow the rules of the college/university. Don't follow it is GROUNDS for disciplinary action. Period.
As for the dean, reporting to them would only be an admission to violating the rules of the institution.
The dean can't do much about getting you paid but if te dean is unsympathetic, by the regulation kind of person... you can be in trouble. Especially if you tell them that you used the school's equipment for business use which is NOT academic use.
All of the colleges/universities have a default rule that the equipment for student use if for academic use only. It is not for business use. At the community college library in Astoria, there is only a couple computers and a printer system authorized for patron use and more open to public general use and not limited to academic use. If equipment is for student uses only then it is for student academic uses such as reports and doing student work not business work.
Student work is class work/home work assigned and graded. Business work is work for one's business NOT classwork.
This idea that one cannot sell one's school-related work is nonsense.
First of you, you should all get some very good photographs of this model for your portfolios.
Second, if you are students, you can certainly be forgiven for not knowing the full letter of the law regarding either school produced work or professional contracts. Unless your school specifically stated to you clearly that your architectural projects or use of equipment has no commercial value, then you can buy and sell whatever you like. Don't be intimidated. I'm sure your professors would likely be thrilled you spent so much time developing a model, unless you skipped out on other projects to complete it.
Yes, a lawer is potentially expensive, but merely a letter from a lawyer might get this guy to fork over at least some cash. Maybe the model isn't up to snuff or useful for his clients.
Finally, if some guy is running around taking advantage of students or stiffing people for their labor, I can't imagine he would be happy about his name and firm's name being brought before the court of public opinion. There is no excuse for this nonsense in either the academic or professional world.
I'm surprised the model was not up to jeff svitak's standards. Judging from his website they don't appear to be that high. I think I went to school with that clown, at least a few years overlap. He is not an architect, that BENVD from CU is not an accredited degree, you usually need a masters also. Also he only lists one other job? Before starting his own? I think there is some seriously shady stuff going on there. I think the Local AIA chapter would be interested in hearing more about this.
First of all, people who suggest that a potential infraction of school rules is grounds for this dude to balk on payment are out of their damn minds. With that logic, it would be totally OK to have a client not pay you because he or she heard a rumor that you might be having a billing dispute with your electric company. Separate issues, to be dealt with one at a time.
Regardless of your thoughts on this, Olivia said that they had the shop's permission! So that should clear it up right there. Richard Balkins (...Assoc AIA lol) is trying to make this sound very black and white, but I know from 7 years of school that the overlap between professors' and students' personal lives and school resources is fuzzy at best...plenty of faculty, with the dean's permission, used the laser cutter for independent work. The smart thing to do is get permission, which you did. Bravo.
Olivia, I commend your attitude: treat this as a learning experience. Learn that it's best to check in more regularly with your client, and also learn that the #1 role of running a project is managing your client's expectations. But most importantly, learn that some clients are just plain dicks and will try to bleed you dry. Go talk to the dean, and try to resolve this. I would also not rule of small claims court if necessary...he might offer to settle for, say, half the agreed price to avoid hiring a lawyer. Not right but better than nothing.
To see an architect take advantage of young students like this is despicable. Then again, I visited his website and the work is almost as bad as his attitude, starting with this gem of a firm statement: "When I think about architecture, I have the feeling of nostalgia. These feelings are developed from the images of my life history and from my desires. I remember vividly the way the morning sunlight entered through the glass entry door of my childhood home. I remember the warmth it gave as it washed the wood floor while I would sit with my father, who would be eating a grapefruit after his morning run." Is this architecture or the opening scene of a Lifetime movie? Holy shit I'm gonna throw up.
If one tenth of the energy that was put into this thread was put into an actual collection effort (filing a small claim, talking to dean) this would have been settled by now with at least partial payment.
Sure you can sell your school work at a consignment shop.
Oct 8, 14 5:32 pm ·
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Olivia8880,
"Let me clarify this concern. The way this process began was that one of the architects was friends with the co-manager of our shop, a paid employee by the university and not a student. He then handed off the project to us, as we were willing to build the model and were promised pay for our work. The building process took place during out vacation time, and if it were during school our hours would have been compensated by our shop. However, the shop was closed during so it became solely our gig.
We did not have a written contract, just a verbal agreement and an invoice for services sent over with details on costs, but no signature was collected. This invoice was then approved by our shop manager (not a student), so we did have full permission from the school to take it on and were expected to do so. After talking to our manager once they told us we weren't getting paid he wanted us to take it as a learning experience and he would help us out any way he could during the school year. I want to talk to him again and suggest filing a claim as well as possibly our dean afterward. He isn't around this week but I will keep this feed posted.
btw... the firm is jeff svitak for those that wanted to know."
Finally getting to reading your message. Okay, it seems you have permission to use the work shop. That is good so far. Whether the co-manager had the authority to allow the facility and equipment to be used, is besides the point in this situation.
Lesson, when there is an intermediary party in the arrangement such as your shop manager.... ALWAYS have a written contract. In fact, always have a written contract. Verbal contract has the worth of its weight in materiality. If you have a verbal contract, better have an audio recording if not an A/V recording. (video with audio)
Oct 8, 14 5:47 pm ·
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Paul Mateluf,
You are an adult then you are accountable to following the full body of the law. You are suppose to know the know and research the laws and when confused about the law... CONSULT an attorney.
Remember the phrase: "Ignorance of the law is not a excuse."
By the time you are 18 years old or reach the age of contract, you should know the law or consult a lawyer for legal counsel because that is what a reasonable responsible person would do and that is what every living human being is required to do in the United States. Otherwise, it is negligence and failure to uphold standard of reasonable care which by law applies to EVERYONE not just those licensed.
Oct 8, 14 5:54 pm ·
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HotelSphinx,
I didn't have a chance to read Olivia's message that has clarified. That was not until just before I wrote my response to Olivia. Since she mention the co-manager provided permission. Okay. There is permission. This means that tangent of the discussion earlier do not apply in this particular case.
In this case, I believe this Jeff Svitak simply started a commission for a model to be made but not wanted to pay for it.
I would recommend we keep an eye on this guy. I think this guy might be potentially violating architectural licensing law. California law cited below regarding exemption in California. It would be interesting if he has violated the law. Some of the work on his site seems like a possible violation and is worth further investigation.
Neither him or Sebastian whom he collaborated with appears to be registered in California.
I'd keep an eye on this person. I wouldn't recommend reporting potential violation until after due dilligence effort to check up on the permits of the questionable ones. Some looks to be possible violation and needs an architect's involvement and therefore, should have stamped drawings.
§ 5537 Exemptions; Dwellings, Garages, Agricultural and Ranch Buildings; Supervision of Licensed Architect or Registered Engineer Required
(a) This chapter does not prohibit any person from preparing plans, drawings, or specifications for any of the following: (1) Single-family dwellings of woodframe construction not more than two stories and basement in height. (2) Multiple dwellings containing no more than four dwelling units of woodframe construction not more than two stories and basement in height. However, this paragraph shall not be construed as allowing an unlicensed person to design multiple clusters of up to four dwelling units each to form apartment or condominium complexes where the total exceeds four units on any lawfully divided lot. (3) Garages or other structures appurtenant to buildings described under subdivision (a), of woodframe construction not more than two stories and basement in height. (4) Agricultural and ranch buildings of woodframe construction, unless the building official having jurisdiction deems that an undue risk to the public health, safety, or welfare is involved.
(b) If any portion of any structure exempted by this section deviates from substantial compliance with conventional framing requirements for woodframe construction found in the most recent edition of Title 24 of the California Code of Regulations or tables of limitation for woodframe construction, as defined by the applicable building code duly adopted by the local jurisdiction or the state, the building official having jurisdiction shall require the preparation of plans, drawings, specifications, or calculations for that portion by, or under the responsible control of, a licensed architect or registered engineer. The documents for that portion shall bear the stamp and signature of the licensee who is responsible for their preparation. Substantial compliance for purposes of this section is not intended to restrict the ability of the building officials to approve plans pursuant to existing law and is only intended to clarify the intent of Chapter 405 of the Statutes of 1985.
Oct 8, 14 6:36 pm ·
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Miles,
The dean isn't going to collect. It isn't his/her responsibility. What are they going to do? A verbal request? Perhaps, it might work if the dean is a friend of Jeff.
Small courts... maybe but its all hearsay. No chance of collecting. No record of discussion so what the hell. Verbal contracts aren't worth squat unless you have a recording of the agreement.
Richard, not to be blunt but your lack of knowledge in this matter is only exceeded by your lack of experience.
The dean may have pull with the scumbag or may simply be able to shame him into payment. Small claims is tried and true and verbal contracts are as binding as written ones. If you bothered to read the entire thread you'd find there is plenty of evidence including witnesses.
Most of which is probably be unnecessary because there is a 99% probability that the scumbag would settle with a negotiated payment long before the court date.
Been there, done that. Once over $400 with a scumbag who had an original Pollack hanging over his fireplace. Jackson Pollack.
Which begs the question: what kind of idiot would hang a Jackson Pollack over a fireplace?
Oct 8, 14 6:53 pm ·
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Miles,
In legal theory, verbal agreement might be worth something but over here on the west coast, we have this thing called, plaintff has to prove their case. In small claims as is with civil court or any civil law proceeding, "the "burden of proof" requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover." ( although quoted from Wikipedia, it is true under the long standing standards of legal process of civil court and well evidenced. )
As you should know, you need to convince the Judge or Jury that you are entitled to relief. Key claim is owing $2000. This means there must be a relationship where the defendent owe money. The supporting claim is an agreement. This one being verbal. The plaintiff has to PROVE there was an agreement in order to prove there was a duty of the defendent to pay the plaintiff of $2000. How do you prove there was a verbal agreement?
A simple half-page 5 to 10 sentence contract in writing with signature line for each party to the agreement would be so damn much better that you don't have to convince a judge that there even was an agreement.
How do you prove the verbal agreement exist? Unless the defendent agrees to the existance of the contract, the plaintiff has the burden to prove the verbal agreement exists. What if the defendent denies there ever being an agreement. Now you have a sticky situation.
You won your case because the defendent acknowledged the existance of an agreement and wasn't that sharp. If he had been sharper, and not confirmed an agreement existed verbally, you would have been in a difficult situation for collecting.
In small claims, your trier of fact is probably a judge and he/she would have to rely on your facial and body langauge to possibly detect if someone is lying which is iffy. A written agreement is better and that is why it isn't worth it to be using a verbal agreement unless it is recorded.
Oct 8, 14 7:30 pm ·
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As for witnesses, you need viable witnesses because just because there might have been other people in the workshop, they may not recall anything.
The students that were making the model would be jointly plaintiffs and not be deemed as impartial witnesses. The co-manager is possibly the only viable witness at all. The defendent maybe but he or she wouldn't witness against one's self. Who else?
The question was when the price of $2000 was established as the fee for the agreement. The agreement isn't the agreement to make the model necessarily that matters but the agreement to the price and compensation. Was the co-manager present at that moment in time. Was the price established at the beginning of the project or at the end?
I would be cautious because the problem is the students may not be able to project themselves in a manner that would be convincing especially if they are disorganized while the defendent may have more charisma and aura of confidence in what he is saying as far as projecting that in person. It is one thing to get the thoughts in writing done well. Court in person is not as simple. The best thing that could happen in a small claims course for the students' model maker is if the defendent ( Jeff Svitak ) is a no show otherwise, it would be much more difficult given the lack of a written and signed contract. It can be a 1 page agreement.
Are you an attorney who decided to pursue architecture? You don't seem to have a very in depth knowledge of the matter and your conjecture is really just scaring kids at this point.
Listen Kids; Pursue every option available to you. Don't shy away because someone wants to be a Richard and quote legalese that they don't quite understand.
^ Sometimes it's better to keep quiet and let people think you're an idiot instead of opening your mouth and proving it.
sometimes you just got accept it and learn from the experience - a lot of us got desperate during the recession and paid the price for it
Oct 8, 14 8:34 pm ·
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That may be Miles but I don't hold faith in the courts upholding a verbal contract because there is NOTHING tangible to prove it's existance. It is the most flaky form of agreement anyone can make and also the most problematic because all it takes is the defendent denies any verbal agreement. Unless you got a tape recording, there is no physical evidence to prove the agreement ever existed and if the plaintiff can't proof the verbal agreement existed then the plaintiff loses any contract dispute because no contract means no relief.
I been taught that by corporate attorneys of the top firms in the United States to always have a written contract. What attorney ever recommends a verbal agreement?
There is a damn good reason why they don't. If you don't know that, you are a fool.
Would you rely on a verbal agreement for a $10,000,000 commission?
The issue isn't whether or not the courts will accept a verbal agreement. The problem is you have to PROVE IT or have its acknowledged by the defendent. Don't kind yourself, people can make a convincing lie in court because made themselves believe the lie.
Show me how you will prove their was a verbal agreement and who would be the supporting witnesses. Were they present at all times. Were they present mentally to the agreement discussion. Can they recite exactly what was said. A word for word account of the verbal agreement must be recited by the witnesses. It must be substantially similar. There must be impartial witnesses that can recite what happened. Can that be performed?
We are a country where our judicial system is that people are to be presumed innocent until proven guilty. That basis still predicates civil law as it does criminal law.
Richard, actually you do not have to prove anything, you just need to convince the judge. Civil court is much different than criminal court. Yes in criminal court there is something called "proven guilty" "burden of proof" "beyond reasonable doubt". No such thing on civil court. No one has to reach that level proof. It's much more up to the discretion of the judge. And... yes absolutely a verbal contract is just as good as a written contract.
Oct 8, 14 10:52 pm ·
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Don't sidestep my question. The goal is getting paid not going to court and pour more money after more money into a losing proposition. If you have to go to court, you lost. Courts take up money. Yeah, small claims are small cost but the fact I use written & signed contract format, it reduces the conflict. I seen people go to court and even arbitration like People's Court and Judge Judy and other on TV courts besides real courts where the contract is lost because it was verbal and there is no evidence to support the case.
The problem is you got a never ending dispute over whether or not there is a verbal contract because all the defendent needs to do is deny any agreement and not contradict their denial of a verbal agreement.
It has been done before and all the defendent has to do is keep a calm, collective composure.
The side least collective and calm loses because their lack of collectiveness and calm causes them to not be convincing. What does a Judge have to go on when there is a dispute raised over whether or not there is an agreement. I'd even may go as far as having a public notory present with the contractual agreement. You don't have any question.
You got successful once. Okay. You were calm and collective. Was your oppopent in trial as calm and collective? Yes or No.
The question for the model maker (Plaintiffs) is, what kind of witness other themselves do they got. If they can't meet the hard pressed questions I raised then there is a good chance they will fail which means not only would they lose their $2000, but they would be spending more money in court fees and time where they could be moving on to the next project and make more money and hopefully with a written contract they'll have less issue of the client balking. Thery may balk at going into the project but in part, you would in turn be qualifying your client. Would you want a cheap ass jerk for a client. Probably not.
Oct 8, 14 11:02 pm ·
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jla-x,
To convince a judge on a verbal agreement was made, how are you going to do that? Wave your hands? Yell and scream? Get in a pissy fit? I don't think so. If you are going to do a verbal agreement, turn on the voice recorder program in your Android tablet, or on your iPhone or iPad or whatever device if not film it using the camera. Just record it. Then you have it as evidence.
No need to play games and waste hours. Otherwise, use a written agreement.
Since we are talking about a civil case, the key is to have the more convincing case in the matters of preponderance of evidence and the burden of proof to make the case to begin with is with the Plaintiff. To shift the burden of proof to the defendent, the plaintiff needs to convince the Judge on a contract suit is the evidence of existance of a contractual agreement between the Plaintiff(s) and the Defendent(s). Right? The dispute is paymet for services under a claimed contract agreeent. The issue is, the claimed agreement is verbal. If so, the plaintiff has the burden of proof to convince the Judge that there is a verbal agreement.
What are the ways to prove a verbal agreement exists?
1. Tangible evidence (recording)
2. Acknowledgement of the agreement by the Defendent
The first thing a Judge is going ask after the plaintiff(s) make a claim of a verbal agreement is ask if there is evidence of the agreement then/or ask the defendent if there was a verbal agreement.
In other words, ask for a confirmation or acknowledgement by the defendent that a verbal agreement took place.
The Judge may very well ask the defending for confirming prior to asking if you have any proof or witnesses that can testify to the agreement.
What witness will there be to testify that such occured. That is the hard ball I am pressing on the model makers to have and be able to answer. If they don't have that, don't waste time on the trial route.
In order to get compensated for making the model, there has to be a contractual agreement. The preponderance of facts must prove that a verbal agreement was made. The existance of the agreement is paramount and must be proven. This is why in contractual matters it is always better to have a written and signed agreement because all you have to show is the paperwork with the signature of both parties.
This is why the written agreement will be far more effective at making the case a prime facie case and shifting the burden of proof on the defendent.
You go to trial to win. Trial is war. You go to war to win not if's. You go to trial to win not maybes.
If you can't substantially proof your case in small claims or civil within minutes, you have problems. By substantially, I don't mean minimally like 51/49. I mean like 95% chance of winning your case in like minutes with all the supporting facts. It's basically the Art of War. You should have won before you begin the trial.
Non-Payment for Model
Actually, some publicity in this matter would be a public service, possibly preventing such assholes from trolling undergrads for cheap labor and abuse.
Richard - I call bullshit. Unless there's some express policy banning them from engaging in business transactions on school premises, what stops them from getting paid for their work? It sounds like you're spinning some ideas about their legal rights off the cuff.
Alternative:
Actually what I am talking about is real. It is illegal to establish and conduct a business on property that you do not have ownership of or authorization to conduct business on the premises. You may get away with it if it doesn't rise to complaints so I advise not to cause a big fanfare. If you read what I said, to do business legally, you need to have legal permission. Getting away with illegal acts doesn't make it legal. Got it?
If it became aware of in a lawsuit, it can result in the contract being deemed illegal because the business is illegal and conducted under illegal premises. In others, you better do everything legally correct or you can face your contract being deemed null and void and therefore no ability to collect.
When the college or university has not expressed authorization, they can become defacto liable. This is a liability risk to the institution and they may have issues with it considering there is no legal agreement that would indemnify the institution. The institution may have issues. That is why they may have permits or otherwise.
It is not lawful to use college equipment to carry out a business without authorization. Use your own. If you can't afford to do so and be in business then you are not suppose to be in business. Therefore, get a job.
That is why running a real business cost money but students doing gigs without official authorization are undercutting people because they basically stole college equipment for business use by using it without permission for commercial/business use.
I said, some colleges and universities have issues. Hell, look at what happened when the founder of facebook started their business. He almost got expelled.
Think about it.
If it was specified or implied in their verbal contract that they would be using school equipment then it could very well be an illegal contract. If it wasn't, however, then their (un)lawful use should be a separate issue from their service and payment, and the contract would be good. By drawing attention to it all they could very well open themselves up to something from their school, but I believe they could still collect from Scumbag Architect. I'm in a different country, though, so it could be different.
In conclusion, if you did use school equipment against policy it could be in your (academic) interest to let this drop. The lesson you should take from it, though, isn't that it's OK to be stiffed on a contractually specified fee, but that you should always read the fine print, operate your business legally (so that you can legally collect), and get everything in writing.
If you guys used school equipment to engage in a for-profit business transaction without written permission from the school, then I'd let this drop. You can't use school laser cutters to build a model then charge $2,000.00 for it; and i'm willing to bet in your student code, policy, honor code, or w/e it's called, it explicitly states that school assets may not be used for business purposes.
what does this have to do with the price of tea in china?
^ That's my question too. The posters built a model per a verbal agreement. So far as we know, they performed at least 75% of their obligation. They aren't getting paid. It's not that complicated. Let's stop trying to be Philadelphia lawyers.
Sorry bud, contract law is complicated.
Richard - contract law varies state by state; Coco is right-- contract law is complicated (and I'm gonna make a wild guess and assume that s/he is in an Anglo-American jurisdiction).
Whether or not a school policy has a no-business policy, that fact doesn't necessarily invalidate the contract. The parties still arguably have a right to be compensated for their labor; their violation of school policy seems like a totally separate issue. Contracts are usually invalidated on illegality grounds when parties contract to engage in things like a drug deal or prostitution-- not merely for engaging in a commercial transaction at school. You're making these weird blanket pronouncements and don't seem to know the basics of contract law.
I'd actually urge the students to speak for the Dean and look for some student legal services available on campus. Do you guys have a law clinic that could help? This is a pretty straightforward contract dispute; there are obviously some wrinkles, but it seems resolvable. Miles Jaffe is a little bit aggressive in his points, but I think he's the one making the most sense in this thread.
Also, Richard, what does "to do business legally" even mean? In the US, we have something called "freedom of contract" - by and large, in unregulated industries (like model making), people can freely enter into commercial transactions as they wish without permission from the government.
I like Alternative's suggestion to speak with the dean. Not as an alternative to making the claim, but to support it. If the scumbag is an alumni this could have repercussions. In any case the dean could apply pressure that might resolve the matter very quickly.
......
Alternative,
If you violate the law to engage in a contract then the contract is illegal. There is no such rights under the Bill of Rights called "Freedom of contract" per se. There is NO SUCH THING as unregulated industries. All industries, businesses, etc. are regulated because they are subject to the laws of the authorities having jurisdictions and therefore has regulation.
The students know or reasonably should know by having the student handbook provided to them which indicates that school equipment for student use is for academic use only. That means, not to be used for commercial use.
Buy your own lazer cutter, rent a garage or workshop building somewhere in town and set up business there provided you got the zoning classification setup for your use.
It is against the law to engage business knowingly that you will be violating laws and violating them.
90% of student owned businesses ran on campuses are noncompliant illegal businesses because they don't comply with the laws, permits, business licenses, etc.
Did they get their business license? Two separate students formed a GENERAL PARTNERSHIP which requires a business license. In Oregon, you would need to register the business with the state. You need to have your business license with the city or county.
Did they go through that. You can't contract under law as a partnership unless you have your business licensed/registered and so forth authorizing one to engage as a business.
One can contract under the basis of this so called "freedom of contract" to do something like, "I'll buy you a cup of coffee" but they can't contract as a business for compensation unless he or she or they is/are legally established as a business and has authorized agreement with the institution to use the equipment of the institution for commercial/business use.
They also need to have a principal place of business for their business license.
One might want to keep a little low key.
It is clearly implied or reasonably implied that the school's equipment would be used to make the model since they would have been too loose lip about using the laser cutter here and so forth. This would have implied to the client that they had authorization to use the equipment for this use. Which is probably, FRAUD or MISREPRESENTATION by these student model makers because they don't have authorization for commercial use by the institution which is the proper channel for doing so.
In addition, they weren't a real business and violating local and state laws of engaging as a business without a business license.
The contract can be null & voided. More likely, they be fined and also the client can be freed from obligation to pay. It is better for the OP to let this one slide and correctly form a business. Get proper authorization and so forth or buy their own equipment to start their business and ideally, their own place of business and workshop.
Please cite to some statutory regime where doing business on campus is illegal. A student handbook is not law.
How are their actions fraudulent? Fraud would require knowing misrepresentation with an intent to induce the clients. The clients found them at their UNIVERSITY.
Are you just sitting at home, bored, making stuff up?
Richard, its just "Moonlighting".
I'm with Alt and Miles - go speak with the dean or chair, chances are there was a lack of agreement on the quality of the model to be supplied. I would think it fair to expect to be reimbursed for the materials, but recouping all time associated compensation may be harder. Next time try to get them to provide the materials and a sample model to show quality and level of detail expected, and a contract or a basic description of what they're paying for in writing.
I made a model once for an outside client (non profit)while in school (made them buy the material upfront, but the quality may not have been par for what they wanted to do with it -marketing/fundraising- due to the materials used), and the dean was supportive as an 'outreach' type of thing. A few others made models for firms, but were essentially hired on as contractors, after the firms had seen their models for school projects and there was a clear communication on what level of detail and craftsmanship was required.
Richard - while a strict interpretation of the rules of the university and business regulations would forbid the aforementioned activities, it's not uncommon for this type of moonlighting to be occurring (which usually also against policy of many firms). Courts could rule either way.
holy crap
talking to the dean is a good idea, after that I still think small claims court will get their attention.
Is this guys defense going to be the contract is void because the work took place in an area that was zoned incorrectly? good luck with that, and even if so, worth the minuscule risk
Alt,
Schools/Universities policy & rules is essentially law (providing it doesn't contradict statutory laws because they are the government of their campus. Remember, a public institution for example is a government entity. Private colleges have case law as private owners right to establish their own "house rules" or "house laws" and the court shall enforce such "house law" as it is empowered by contract law AS LONG AS IT DOESN'T VIOLATE the Public codified laws and rules. On my own property I can establish my own laws/rules (house rules) that shall be followed and if you don't follow it, you can be expelled / removed from the premises. Those basic rules empowered in centuries long common law and our statutory laws, also applies to private colleges and universities and other private entities. It falls in the entitled right and enforced by the power of law of PROPERTY OWNER. The academic institutions make the rules in addition to whatever is under the state or city or county. I was on a campus not that long ago that has its own police. Here's the thing, when you apply to go to college or university, you agree to follow the rules of the institution. If you don't, you can be disciplined by the institution. It can result in expulsion if you make it rise to that level. In addition, unauthorized use of campus facilities can result in you being charged for tresspassing. In addition, use of college equipment without authorization can be charged as theft or unauthorized possession of equipment which is theft.
I wouldn't recommend discussing with the dean of the architecture program let alone the dean of students. Doing so raises attention to the enforcers of the institution's regulations.
That is why the bottom line suggestion and point is be careful and keep a low profile and let this issue slide becase collecting on this can raise bigger problems.
Schools/Universities policy & rules is essentially law
lol. that implies we don't elect our legislative bodies. do lawyers have to study university policy to pass the bar? do judges look to the student council for case precedent?
your use of capitalization helped me understand your point better. i think we should go to our 'no taxation without representation' protests since our elected legislative bodies have been usurped.
Why are you giving this terrible advice if you don't even know what school we're discussing or what the rules are?
You really think a dean would be unsympathetic to students if an alum knowingly went to the school and solicited the students' services?
Let me clarify this concern. The way this process began was that one of the architects was friends with the co-manager of our shop, a paid employee by the university and not a student. He then handed off the project to us, as we were willing to build the model and were promised pay for our work. The building process took place during out vacation time, and if it were during school our hours would have been compensated by our shop. However, the shop was closed during so it became solely our gig.
We did not have a written contract, just a verbal agreement and an invoice for services sent over with details on costs, but no signature was collected. This invoice was then approved by our shop manager (not a student), so we did have full permission from the school to take it on and were expected to do so. After talking to our manager once they told us we weren't getting paid he wanted us to take it as a learning experience and he would help us out any way he could during the school year. I want to talk to him again and suggest filing a claim as well as possibly our dean afterward. He isn't around this week but I will keep this feed posted.
btw... the firm is jeff svitak for those that wanted to know
Talk to Dean first.
Also, it doesn't matter that you don't have anything in writing. A contract doesn't refer to the written piece of paper, it's just the agreement. The paperwork is just a memorialization of the contract, itself. Make sense?
Alt:
Public college/institutions have a public body of elected officials that oversees them. In addition, private entities can enact their own "house laws/rules" and when you applied to a university/college, you signed a contractual agreement to follow the rules of the college/university. Don't follow it is GROUNDS for disciplinary action. Period.
As for the dean, reporting to them would only be an admission to violating the rules of the institution.
The dean can't do much about getting you paid but if te dean is unsympathetic, by the regulation kind of person... you can be in trouble. Especially if you tell them that you used the school's equipment for business use which is NOT academic use.
All of the colleges/universities have a default rule that the equipment for student use if for academic use only. It is not for business use. At the community college library in Astoria, there is only a couple computers and a printer system authorized for patron use and more open to public general use and not limited to academic use. If equipment is for student uses only then it is for student academic uses such as reports and doing student work not business work.
Student work is class work/home work assigned and graded. Business work is work for one's business NOT classwork.
This idea that one cannot sell one's school-related work is nonsense.
First of you, you should all get some very good photographs of this model for your portfolios.
Second, if you are students, you can certainly be forgiven for not knowing the full letter of the law regarding either school produced work or professional contracts. Unless your school specifically stated to you clearly that your architectural projects or use of equipment has no commercial value, then you can buy and sell whatever you like. Don't be intimidated. I'm sure your professors would likely be thrilled you spent so much time developing a model, unless you skipped out on other projects to complete it.
Yes, a lawer is potentially expensive, but merely a letter from a lawyer might get this guy to fork over at least some cash. Maybe the model isn't up to snuff or useful for his clients.
Finally, if some guy is running around taking advantage of students or stiffing people for their labor, I can't imagine he would be happy about his name and firm's name being brought before the court of public opinion. There is no excuse for this nonsense in either the academic or professional world.
I'm surprised the model was not up to jeff svitak's standards. Judging from his website they don't appear to be that high. I think I went to school with that clown, at least a few years overlap. He is not an architect, that BENVD from CU is not an accredited degree, you usually need a masters also. Also he only lists one other job? Before starting his own? I think there is some seriously shady stuff going on there. I think the Local AIA chapter would be interested in hearing more about this.
First of all, people who suggest that a potential infraction of school rules is grounds for this dude to balk on payment are out of their damn minds. With that logic, it would be totally OK to have a client not pay you because he or she heard a rumor that you might be having a billing dispute with your electric company. Separate issues, to be dealt with one at a time.
Regardless of your thoughts on this, Olivia said that they had the shop's permission! So that should clear it up right there. Richard Balkins (...Assoc AIA lol) is trying to make this sound very black and white, but I know from 7 years of school that the overlap between professors' and students' personal lives and school resources is fuzzy at best...plenty of faculty, with the dean's permission, used the laser cutter for independent work. The smart thing to do is get permission, which you did. Bravo.
Olivia, I commend your attitude: treat this as a learning experience. Learn that it's best to check in more regularly with your client, and also learn that the #1 role of running a project is managing your client's expectations. But most importantly, learn that some clients are just plain dicks and will try to bleed you dry. Go talk to the dean, and try to resolve this. I would also not rule of small claims court if necessary...he might offer to settle for, say, half the agreed price to avoid hiring a lawyer. Not right but better than nothing.
To see an architect take advantage of young students like this is despicable. Then again, I visited his website and the work is almost as bad as his attitude, starting with this gem of a firm statement: "When I think about architecture, I have the feeling of nostalgia. These feelings are developed from the images of my life history and from my desires. I remember vividly the way the morning sunlight entered through the glass entry door of my childhood home. I remember the warmth it gave as it washed the wood floor while I would sit with my father, who would be eating a grapefruit after his morning run." Is this architecture or the opening scene of a Lifetime movie? Holy shit I'm gonna throw up.
What was the purpose of the model? I sense financing of the project went tits-up and they no longer needed it to show potential investors.
If one tenth of the energy that was put into this thread was put into an actual collection effort (filing a small claim, talking to dean) this would have been settled by now with at least partial payment.
It's like a public lynching, I love it
Paul Matulef,
Sure you can sell your school work at a consignment shop.
Olivia8880,
"Let me clarify this concern. The way this process began was that one of the architects was friends with the co-manager of our shop, a paid employee by the university and not a student. He then handed off the project to us, as we were willing to build the model and were promised pay for our work. The building process took place during out vacation time, and if it were during school our hours would have been compensated by our shop. However, the shop was closed during so it became solely our gig.
We did not have a written contract, just a verbal agreement and an invoice for services sent over with details on costs, but no signature was collected. This invoice was then approved by our shop manager (not a student), so we did have full permission from the school to take it on and were expected to do so. After talking to our manager once they told us we weren't getting paid he wanted us to take it as a learning experience and he would help us out any way he could during the school year. I want to talk to him again and suggest filing a claim as well as possibly our dean afterward. He isn't around this week but I will keep this feed posted.
btw... the firm is jeff svitak for those that wanted to know."
Finally getting to reading your message. Okay, it seems you have permission to use the work shop. That is good so far. Whether the co-manager had the authority to allow the facility and equipment to be used, is besides the point in this situation.
Lesson, when there is an intermediary party in the arrangement such as your shop manager.... ALWAYS have a written contract. In fact, always have a written contract. Verbal contract has the worth of its weight in materiality. If you have a verbal contract, better have an audio recording if not an A/V recording. (video with audio)
Paul Mateluf,
You are an adult then you are accountable to following the full body of the law. You are suppose to know the know and research the laws and when confused about the law... CONSULT an attorney.
Remember the phrase: "Ignorance of the law is not a excuse."
By the time you are 18 years old or reach the age of contract, you should know the law or consult a lawyer for legal counsel because that is what a reasonable responsible person would do and that is what every living human being is required to do in the United States. Otherwise, it is negligence and failure to uphold standard of reasonable care which by law applies to EVERYONE not just those licensed.
HotelSphinx,
I didn't have a chance to read Olivia's message that has clarified. That was not until just before I wrote my response to Olivia. Since she mention the co-manager provided permission. Okay. There is permission. This means that tangent of the discussion earlier do not apply in this particular case.
In this case, I believe this Jeff Svitak simply started a commission for a model to be made but not wanted to pay for it.
I would recommend we keep an eye on this guy. I think this guy might be potentially violating architectural licensing law. California law cited below regarding exemption in California. It would be interesting if he has violated the law. Some of the work on his site seems like a possible violation and is worth further investigation.
Neither him or Sebastian whom he collaborated with appears to be registered in California.
I'd keep an eye on this person. I wouldn't recommend reporting potential violation until after due dilligence effort to check up on the permits of the questionable ones. Some looks to be possible violation and needs an architect's involvement and therefore, should have stamped drawings.
§ 5537 Exemptions; Dwellings, Garages, Agricultural and Ranch Buildings; Supervision of Licensed Architect or Registered Engineer Required
(a) This chapter does not prohibit any person from preparing plans, drawings, or specifications for any of the following: (1) Single-family dwellings of woodframe construction not more than two stories and basement in height. (2) Multiple dwellings containing no more than four dwelling units of woodframe construction not more than two stories and basement in height. However, this paragraph shall not be construed as allowing an unlicensed person to design multiple clusters of up to four dwelling units each to form apartment or condominium complexes where the total exceeds four units on any lawfully divided lot. (3) Garages or other structures appurtenant to buildings described under subdivision (a), of woodframe construction not more than two stories and basement in height. (4) Agricultural and ranch buildings of woodframe construction, unless the building official having jurisdiction deems that an undue risk to the public health, safety, or welfare is involved.
(b) If any portion of any structure exempted by this section deviates from substantial compliance with conventional framing requirements for woodframe construction found in the most recent edition of Title 24 of the California Code of Regulations or tables of limitation for woodframe construction, as defined by the applicable building code duly adopted by the local jurisdiction or the state, the building official having jurisdiction shall require the preparation of plans, drawings, specifications, or calculations for that portion by, or under the responsible control of, a licensed architect or registered engineer. The documents for that portion shall bear the stamp and signature of the licensee who is responsible for their preparation. Substantial compliance for purposes of this section is not intended to restrict the ability of the building officials to approve plans pursuant to existing law and is only intended to clarify the intent of Chapter 405 of the Statutes of 1985.
Miles,
The dean isn't going to collect. It isn't his/her responsibility. What are they going to do? A verbal request? Perhaps, it might work if the dean is a friend of Jeff.
Small courts... maybe but its all hearsay. No chance of collecting. No record of discussion so what the hell. Verbal contracts aren't worth squat unless you have a recording of the agreement.
That is why written agreements are far better.
Richard, not to be blunt but your lack of knowledge in this matter is only exceeded by your lack of experience.
The dean may have pull with the scumbag or may simply be able to shame him into payment. Small claims is tried and true and verbal contracts are as binding as written ones. If you bothered to read the entire thread you'd find there is plenty of evidence including witnesses.
Most of which is probably be unnecessary because there is a 99% probability that the scumbag would settle with a negotiated payment long before the court date.
Been there, done that. Once over $400 with a scumbag who had an original Pollack hanging over his fireplace. Jackson Pollack.
Which begs the question: what kind of idiot would hang a Jackson Pollack over a fireplace?
Miles,
In legal theory, verbal agreement might be worth something but over here on the west coast, we have this thing called, plaintff has to prove their case. In small claims as is with civil court or any civil law proceeding, "the "burden of proof" requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover." ( although quoted from Wikipedia, it is true under the long standing standards of legal process of civil court and well evidenced. )
As you should know, you need to convince the Judge or Jury that you are entitled to relief. Key claim is owing $2000. This means there must be a relationship where the defendent owe money. The supporting claim is an agreement. This one being verbal. The plaintiff has to PROVE there was an agreement in order to prove there was a duty of the defendent to pay the plaintiff of $2000. How do you prove there was a verbal agreement?
A simple half-page 5 to 10 sentence contract in writing with signature line for each party to the agreement would be so damn much better that you don't have to convince a judge that there even was an agreement.
How do you prove the verbal agreement exist? Unless the defendent agrees to the existance of the contract, the plaintiff has the burden to prove the verbal agreement exists. What if the defendent denies there ever being an agreement. Now you have a sticky situation.
You won your case because the defendent acknowledged the existance of an agreement and wasn't that sharp. If he had been sharper, and not confirmed an agreement existed verbally, you would have been in a difficult situation for collecting.
In small claims, your trier of fact is probably a judge and he/she would have to rely on your facial and body langauge to possibly detect if someone is lying which is iffy. A written agreement is better and that is why it isn't worth it to be using a verbal agreement unless it is recorded.
As for witnesses, you need viable witnesses because just because there might have been other people in the workshop, they may not recall anything.
The students that were making the model would be jointly plaintiffs and not be deemed as impartial witnesses. The co-manager is possibly the only viable witness at all. The defendent maybe but he or she wouldn't witness against one's self. Who else?
The question was when the price of $2000 was established as the fee for the agreement. The agreement isn't the agreement to make the model necessarily that matters but the agreement to the price and compensation. Was the co-manager present at that moment in time. Was the price established at the beginning of the project or at the end?
I would be cautious because the problem is the students may not be able to project themselves in a manner that would be convincing especially if they are disorganized while the defendent may have more charisma and aura of confidence in what he is saying as far as projecting that in person. It is one thing to get the thoughts in writing done well. Court in person is not as simple. The best thing that could happen in a small claims course for the students' model maker is if the defendent ( Jeff Svitak ) is a no show otherwise, it would be much more difficult given the lack of a written and signed contract. It can be a 1 page agreement.
Richard,
Are you an attorney who decided to pursue architecture? You don't seem to have a very in depth knowledge of the matter and your conjecture is really just scaring kids at this point.
Listen Kids; Pursue every option available to you. Don't shy away because someone wants to be a Richard and quote legalese that they don't quite understand.
Jonathan Livingston,
They be better off going to People's Court.
^ Sometimes it's better to keep quiet and let people think you're an idiot instead of opening your mouth and proving it.
^ Sometimes it's better to keep quiet and let people think you're an idiot instead of opening your mouth and proving it.
sometimes you just got accept it and learn from the experience - a lot of us got desperate during the recession and paid the price for it
That may be Miles but I don't hold faith in the courts upholding a verbal contract because there is NOTHING tangible to prove it's existance. It is the most flaky form of agreement anyone can make and also the most problematic because all it takes is the defendent denies any verbal agreement. Unless you got a tape recording, there is no physical evidence to prove the agreement ever existed and if the plaintiff can't proof the verbal agreement existed then the plaintiff loses any contract dispute because no contract means no relief.
I been taught that by corporate attorneys of the top firms in the United States to always have a written contract. What attorney ever recommends a verbal agreement?
There is a damn good reason why they don't. If you don't know that, you are a fool.
Would you rely on a verbal agreement for a $10,000,000 commission?
The issue isn't whether or not the courts will accept a verbal agreement. The problem is you have to PROVE IT or have its acknowledged by the defendent. Don't kind yourself, people can make a convincing lie in court because made themselves believe the lie.
Show me how you will prove their was a verbal agreement and who would be the supporting witnesses. Were they present at all times. Were they present mentally to the agreement discussion. Can they recite exactly what was said. A word for word account of the verbal agreement must be recited by the witnesses. It must be substantially similar. There must be impartial witnesses that can recite what happened. Can that be performed?
We are a country where our judicial system is that people are to be presumed innocent until proven guilty. That basis still predicates civil law as it does criminal law.
Richard, how many times have you been to small claims court? How many times have you litigated over fees?
Richard, actually you do not have to prove anything, you just need to convince the judge. Civil court is much different than criminal court. Yes in criminal court there is something called "proven guilty" "burden of proof" "beyond reasonable doubt". No such thing on civil court. No one has to reach that level proof. It's much more up to the discretion of the judge. And... yes absolutely a verbal contract is just as good as a written contract.
Don't sidestep my question. The goal is getting paid not going to court and pour more money after more money into a losing proposition. If you have to go to court, you lost. Courts take up money. Yeah, small claims are small cost but the fact I use written & signed contract format, it reduces the conflict. I seen people go to court and even arbitration like People's Court and Judge Judy and other on TV courts besides real courts where the contract is lost because it was verbal and there is no evidence to support the case.
The problem is you got a never ending dispute over whether or not there is a verbal contract because all the defendent needs to do is deny any agreement and not contradict their denial of a verbal agreement.
It has been done before and all the defendent has to do is keep a calm, collective composure.
The side least collective and calm loses because their lack of collectiveness and calm causes them to not be convincing. What does a Judge have to go on when there is a dispute raised over whether or not there is an agreement. I'd even may go as far as having a public notory present with the contractual agreement. You don't have any question.
You got successful once. Okay. You were calm and collective. Was your oppopent in trial as calm and collective? Yes or No.
The question for the model maker (Plaintiffs) is, what kind of witness other themselves do they got. If they can't meet the hard pressed questions I raised then there is a good chance they will fail which means not only would they lose their $2000, but they would be spending more money in court fees and time where they could be moving on to the next project and make more money and hopefully with a written contract they'll have less issue of the client balking. Thery may balk at going into the project but in part, you would in turn be qualifying your client. Would you want a cheap ass jerk for a client. Probably not.
jla-x,
To convince a judge on a verbal agreement was made, how are you going to do that? Wave your hands? Yell and scream? Get in a pissy fit? I don't think so. If you are going to do a verbal agreement, turn on the voice recorder program in your Android tablet, or on your iPhone or iPad or whatever device if not film it using the camera. Just record it. Then you have it as evidence.
No need to play games and waste hours. Otherwise, use a written agreement.
Burden of Proof exists in civil court.
http://www.law.cornell.edu/wex/burden_of_proof
http://legal-dictionary.thefreedictionary.com/burden+of+proof
http://legal-dictionary.thefreedictionary.com/preponderance%20of%20the%20evidence
Since we are talking about a civil case, the key is to have the more convincing case in the matters of preponderance of evidence and the burden of proof to make the case to begin with is with the Plaintiff. To shift the burden of proof to the defendent, the plaintiff needs to convince the Judge on a contract suit is the evidence of existance of a contractual agreement between the Plaintiff(s) and the Defendent(s). Right? The dispute is paymet for services under a claimed contract agreeent. The issue is, the claimed agreement is verbal. If so, the plaintiff has the burden of proof to convince the Judge that there is a verbal agreement.
What are the ways to prove a verbal agreement exists?
1. Tangible evidence (recording)
2. Acknowledgement of the agreement by the Defendent
The first thing a Judge is going ask after the plaintiff(s) make a claim of a verbal agreement is ask if there is evidence of the agreement then/or ask the defendent if there was a verbal agreement.
In other words, ask for a confirmation or acknowledgement by the defendent that a verbal agreement took place.
The Judge may very well ask the defending for confirming prior to asking if you have any proof or witnesses that can testify to the agreement.
What witness will there be to testify that such occured. That is the hard ball I am pressing on the model makers to have and be able to answer. If they don't have that, don't waste time on the trial route.
In order to get compensated for making the model, there has to be a contractual agreement. The preponderance of facts must prove that a verbal agreement was made. The existance of the agreement is paramount and must be proven. This is why in contractual matters it is always better to have a written and signed agreement because all you have to show is the paperwork with the signature of both parties.
If you don't have it, you are S.O.L.
http://www.rbs2.com/cc.htm
This is why the written agreement will be far more effective at making the case a prime facie case and shifting the burden of proof on the defendent.
You go to trial to win. Trial is war. You go to war to win not if's. You go to trial to win not maybes.
If you can't substantially proof your case in small claims or civil within minutes, you have problems. By substantially, I don't mean minimally like 51/49. I mean like 95% chance of winning your case in like minutes with all the supporting facts. It's basically the Art of War. You should have won before you begin the trial.
Shit. Now I've got butter spots on my shirt from the popcorn I've been eating. Who's gonna pay me for that?
Richard, maybe the questions were too difficult for you to understand, so I will rephrase them.
How many times have you been to small claims court? How many times have you litigated over fees?
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