Breach of Contract - any merit to this case?

[krl7044]

State: MA

Designer hired by client to do website (design and coding). Designer went above and beyond the contract trying to help the client figure out what they need and performed extra services that are not in the contract. Client rejected all 12+ designs, requested services beyond the scope of the contract. Designer realized that the client will need higher end services they can not provide and offered to set the client up with an agency (which can provide the services required). For their work designer wants to keep $1k paid to them by the client, and wants to terminate the contract. Designer still wants to help code the design if the client works with the agency. Client rejected everything and wants to sue for breach of contract.

Question: What can the client hope to win? Is there a merit to their case? Designer has good documentation and professional recommendations from the design agency they work with attesting to the quality of their work. Client does need services of multiple professionals (which a design agency can provide) while the designer can not provide these same services, and the client realized that they need the extra services only after the designer did all this work with them.

 

[Mass_Shyster]

Question: What can the client hope to win?

They hope to receive what they would have gained had the designer performed on the contract.

Without knowing the actual terms of the contract, nobody can guess if there is merit to their case.

Also, beware of the Massachusetts Consumer Protection laws (Chapter 93A). If you don't proceed properly, you may be subject to double or treble damages.

 

[krl7044]

They hope to receive what they would have gained had the designer performed on the contract.

Without knowing the actual terms of the contract, nobody can guess if there is merit to their case.

Also, beware of the Massachusetts Consumer Protection laws (Chapter 93A). If you don't proceed properly, you may be subject to double or treble damages.

Why does a contract matter that much? Suppose the contract says that the designer has to work until the client is reasonably satisfied with the work, but the client is never pleased. Isn't there relief if the designer can show that they did the best job they could and the client wasn't reasonable?

 

[Zigner]

Why does a contract matter that much? Suppose the contract says that the designer has to work until the client is reasonably satisfied with the work, but the client is never pleased. Isn't there relief if the designer can show that they did the best job they could and the client wasn't reasonable?

That is the risk you run with such a vague agreement. Basically, you are giving a "satisfaction guarantee" - and if the customer isn't satisfied, you lose.

 

[tranquility]

All parties must perform in good faith. "Reasonable" is not really an element in good faith, but intentional acts are. Say I want a red t-shirt. You give me a pink one. Do I need to take it? Say you try again, it is closer to red, but not enough to satisfy me. Do I need to take it?

Now, let's say you give me a flat red when I was asking for a glossy red. Is it reasonable I don't accept it? I mean, it's the same red. Finally, let's say you give me a #3305 red, but in my mind I had #3306 red. Is it reasonable if I don't accept it? It's almost the same, but....just a bit outside. Can I reject it without being accused of bad faith? What if I was using a red screen background for filming and it was #3306 with your t-shirt being #3305?

Reasonable depends on many things. While a reasonable man test is objective, reasonable in a contract is very subjective. Bad faith is not so much a contract term but can be considered more of a tort. It is an intentional act to attempt to nullify a contact. While a person who is not being reasonable may give rise to a suspicion of bad faith, reasonable has nothing to do with it.

 

[krl7044]

All parties must perform in good faith. "Reasonable" is not really an element in good faith, but intentional acts are. Say I want a red t-shirt. You give me a pink one. Do I need to take it? Say you try again, it is closer to red, but not enough to satisfy me. Do I need to take it?

Now, let's say you give me a flat red when I was asking for a glossy red. Is it reasonable I don't accept it? I mean, it's the same red. Finally, let's say you give me a #3305 red, but in my mind I had #3306 red. Is it reasonable if I don't accept it? It's almost the same, but....just a bit outside. Can I reject it without being accused of bad faith? What if I was using a red screen background for filming and it was #3306 with your t-shirt being #3305?

Reasonable depends on many things. While a reasonable man test is objective, reasonable in a contract is very subjective. Bad faith is not so much a contract term but can be considered more of a tort. It is an intentional act to attempt to nullify a contact. While a person who is not being reasonable may give rise to a suspicion of bad faith, reasonable has nothing to do with it.

Ok, I get the point. The designer is in NO WAY trying to nullify the contract, merely to suggest that the services requested are beyond the scope of the contract and beyond the scope of designers' expertise, thereby requiring outside experts (which per the contract will cost extra to the client). Also, the designer is offering to complete the website as promised in the contract, but to also be paid the balance. The designer is, however, saying to the client that no more iterations are possible and that the client has to either pick a design or pay extra to the outside agency if they want a design based on their specifications (which were outside of the original scope).

Here's the quote from the contract:

"Visual design of the website, including as many drafts/revisions as necessary until you are happy with the look."

In the future, this contract will be significantly improved with better clauses protecting the designer, however, in the meanwhile, does this mean that the designer has to work until the end of days to make them 'happy'? The deliverables are also vague - basically, a website that works, so nowhere does it say exactly what the details have to look. But after 24 design iterations and after discovering that the client is not reasonable and wants extra services which the designer is not capable of delivering, what should designer do? Do they have any remedy against the client? It is beside the point that the designer is making all efforts to accommodate the client, but the client simply states "we own you - you do whatever we want for as long as we want". Are they right?

 

[tranquility]

It is a very bad contract wording from the point of view of the developer. If the client is not going to agree to reasonable efforts, I'd breach the contract and let him sue me for damages. What can the benefit of the bargain be, really? Take the loss on your breach. You can send a letter to set up all the facts in case you do get sued later.

 

[krl7044]

It is a very bad contract wording from the point of view of the developer. If the client is not going to agree to reasonable efforts, I'd breach the contract and let him sue me for damages. What can the benefit of the bargain be, really? Take the loss on your breach. You can send a letter to set up all the facts in case you do get sued later.

Again, good point. Would the client argument hold out in court? As in "the contract says we have unlimited time/resources from the designer"?

 

[tranquility]

Sorry, all they would need to say is that there was a contract and they were not satisfied. Prima facia case. Now, everything else, the burden is on you.

 

[krl7044]

Sorry, all they would need to say is that there was a contract and they were not satisfied. Prima facia case. Now, everything else, the burden is on you.

What if the designer can get a professional opinion that attests that the designer performed to the highest standards of the industry? We are not talking about the designer running off with the money - they did the work to the highest standards and the client simply didn't care, and didn't even try to negotiate or to make any effort to arrive at a mutually agreeable settlement. All they have is 'I don't like', and 'keep going until we are happy'. The designer has a mountain of of evidence showing that they did everything based on clients' business needs and effectiveness of the design (this is a high-end designer, not just some kid who dabbles). The client only had 'I don't know' when asked about what they wanted for design, so the designer took the burden to come up with specs. I simply can't believe that a judge would side with the client while ignoring everything else. Basically, the client was paid so far and did all the work that they were paid for, that's the argument.

 

[tranquility]

See an attorney. Supposing things is not going to help you think this through at this point. Assume you will be in breach. Try to reduce damages.

 

[Mass_Shyster]

What if the designer can get a professional opinion that attests that the designer performed to the highest standards of the industry?

Your contract does not call for you to perform to the highest standards of the industry, so the professional opinion would be irrelevant.

You've dug yourself quite a hole with your do-it-yourself contract, and I don't think you'll dig your way back out with a do-it-yourself lawsuit. If you want to go to court over this, you need a professional.

You've also allowed the client to expand the scope of the contract with no additional compensation.

I suggest presenting the client with a product that complies in all ways with the original specifications as contracted, and letting them know that no additional functions or features will be included and that the only changes made will be "drafts/revisions as necessary until you are happy with the look". I would adamantly refuse to make any changes that affect anything but the "look".

My guess is that they will never be happy with the look, and that you will never get paid for the work you've done.

 

[krl7044]

See an attorney. Supposing things is not going to help you think this through at this point. Assume you will be in breach. Try to reduce damages.

Does the designer HAVE to breach to do anything? What if they offer to refund what they've been paid? Would that eliminate the potential of a lawsuit? Also, who says what a breach is? The designer never said they'll stop work, merely stop shuffling drafts and finish the product as specified.

 

[krl7044]

Your contract does not call for you to perform to the highest standards of the industry, so the professional opinion would be irrelevant.

You've dug yourself quite a hole with your do-it-yourself contract, and I don't think you'll dig your way back out with a do-it-yourself lawsuit. If you want to go to court over this, you need a professional.

You've also allowed the client to expand the scope of the contract with no additional compensation.

I suggest presenting the client with a product that complies in all ways with the original specifications as contracted, and letting them know that no additional functions or features will be included and that the only changes made will be "drafts/revisions as necessary until you are happy with the look". I would adamantly refuse to make any changes that affect anything but the "look".

My guess is that they will never be happy with the look, and that you will never get paid for the work you've done.

The idea is to avoid lawsuit. The client merely threatened, but not initiated, and they want a working website using the 'necessary revisions' clause as their stick.

So do you suggest sticking with a single draft, finishing a website and simply asking the client to pay for the rest of it (another $1k, which they won't)? How is that better than simply refunding their $1k paid so far and calling the whole thing off?

 

[Zigner]

How is that better than simply refunding their $1k paid so far and calling the whole thing off?

If your client will accept this as a settlement, it might be a good idea, in my opinion.