<Tutor>
<Department>
Simon hired the boy band No Direction to appear on the last episode of the show “You’re hired” with an agreement of £250,000 paid to each band members. The objective is to ensure the highest possible viewership and publicity, which in return will give the show a worldwide advertising revenue. Apparently, one of the members Payn is not very happy and as a goodwill gesture, he was offered a whole week of vacation with his fiance at Maldives. Unfortunately, Payn delivered a poor performance, which resulted to negative feedbacks from the press. Consequently, Simon instead awarded the vacation gift to another band member Larry.
Introduction
As legal adivisor to Simon, it is important to determine whether Payn has a reasonable ground to file a lawsuit against Simon for not awarding the aforementioned goodwill gift. In order to examine whether a breach of contract has occured, it is important to articulate the five elements of a contract and whether or not a goodwill gesture counts as a forceable. In adddition, examining the case would also take emphasis of the context of contract formation, breach, and remedies. More importantly, clarifying the grounds for a possible lawsuit will be discussed in reference to the law on contracts and recommendations will be provided afterwards.
Regardless of how the agreement regarding the vacation was made either in writing or verbally, the contractor, which in this case is Simon is obliged to award that the vacation as promised and as agreed by Payn. However, there is a problem that had to be considered, the contract to perform for the show encompasses an agremment between the two parties, and Payn is expected to deliver the contracted performance as an exchange for the price that Simon paid plus an added goodwill. Unfortunately, Payn failed to meet that expectations and instead delivered a lousy performance. At this point, it is Simon who should be suing Payn for not delivering a good performance as expected and not the other way around. Setting that possibility aside, the vacation to maldives was offered as goodwill gesture to boost Payn’s aenthusuasm to perform, which he had to do with or without the vacation because it is as contracted.
In order to further understand the context of the case, the law of contract and its elements including formation, breach, and remedies should be made clear. The formation of a contract begins with a mutual agreement between parties, and the elements such as offer, consideration, acceptance, competency and capacity, mutuality of obligation, and a written instrument should be met (Gulati, 2011). Once all of the elements are established and either one or more of the elements were violated, it is considered as a breach of contract and certain remedies will be infroced to recover any losses resulting from the breach. In the case of Simon and Payn, the conract to perform at a certain talent fee is out of the question, the focal point of the issue is about the promised vacation in Maldives, which is presumably an agreement separate from that of the contract to perform. It is important to remember that the promised vacation was made as a goodwill gesture, which may or may have used a written instrument. Assuming taht the vacation is was made verbally, in order for such agreement to be considered as legally binding, it must reach completeness (Crystal, 2016). This means that the terms and conditions of the agreement was fulfilled and in the case of Payn, he should have delivered a satisfying performance.
However, Payn failed to do so in the event taht his performance was not satisfying. This means that Payn was not able to meet the terms and conditions of the verbal agreement. If Simon asked the boy band to perform, he expects to get the reasonable value in the exchange, which is a good performance. With regards to Payn, his lack of enthusiasm was encouraged by offering an incentive, which holds an obligation for him to perform at his best. However, Payn has failed to deliver that obligation, which does not entitle him for the said vacation. If Payn decided to bring the issue into Court, an investigation of what actually transpired in practice will be conducted (Irving, 2014). Apparently, the breach of the agreement was made by Payn for not performing well and for Simon to deny him of the promised goodwill can be considered as a consequence of the breach of the agreement. In this sense, Payn has no reason to contest Simon’s decision to award the vacatio to Larry because he was not able to meet the conditions of the agreement in the first place.
The issue can be viewed differently if the agreement regarding the vacation was made in writing because the forceability of the written contract is imminent once its elements has been established (McLauchlan, 2009). Assuming the goodwill was made in writing, the element of offer was established in a form of a vacation. Secondly, Payn accepted and considered the offer, which brings both parties to establish mutuality of obligation implying that Payn is to deliver a satisfactory performance within the expected capacity and competency, and in return Simon will provide the vacation as agreed. In this scenario, when Simon made the offer and Payn accepted it, therefore, both parties are now bound to the terms and conditions of the contract with obligations that both had to fullfil. When talking about obligation, Payn should have realized that he must abide by the provisions of the contract in which a good entertainment is expected of him. However, he failed on that part, hence a breach has been made by Payn causing Simon to revoke the former’s claim for such vacation and no remedies are necessary given the circumstances.
Recommendation to Simon
According to Shiffrin (2007), the moral rules of promise typically require one party to keep it unilateral regardless of nothing was received in exchange. If this is case, Simon should still award Payn the promised goodwill even if the latter delivered an unsatisfying service. The agreement between Payn and Simon falls under the category of private promise because not all members of the boy band was offered the same goodwill, and the promise is circumstantial in nature. In this extent, the private promise is independent of the assurance of performance and cannot be a ground for legal action (Bagchi, 2011). This is because Payn cannot objectively rely on the facts of the promise unless he delivered the other end of the agreement accorded to the stated promise. As argued by Geis (2014), gift promises are typically thrown out casually with little consideration to an actual commitment, hence, it is categorically underserving of legal enforcement. If Simon promised to gift Payn a vacation to Maldives and the latter says ok, there is indeed an agreement made. However, the questions of whether the law will enforce such promise, the answer to that is no. Another argument that supports this assertion can be derived from the Strict Bargain Theory suggesting that gratuitous are not enforceable by law as observed in the case of Stilk v. Myrick [1809] EWHC KB J58 King’s Bench Division. Therefore, Simons is not obliged to fulfill the goodwill gesture to Payn and there is no legal ground for the latter to sue the former.
Conclusion
Given the facts of the case and the circumstances of the issue surrounding the promised gift of vacation to Maldives, Payn cannot sue Simon for not giving him the said promise. This is because the private or gratuitous promises are not enforceable by the law unless a binding contract exists pertaining to the said promise, and Payn had delivered a satisfactory end of the agreement, which he failed to do so in this case.
References
Bagchi, A. (2011). Separating Contract and Promise. Florida State University Law Review, [online] 38(709), pp.709-758. Available at: http://archive.law.fsu.edu/Journals/lawreview/downloads/384/Bagchi.pdf [Accessed 25 Jun. 2016].
Crystal, G. (2016). The Law & Verbal Agreements. [online] Contractsandagreements.co.uk. Available at: http://www.contractsandagreements.co.uk/law-and-verbal-agreements.html [Accessed 25 Jun. 2016].
Geis, G. (2014). Gift Promises and the Edge of Contract Law. University of Illinois Law Review, [online] 2014(3), pp.664-688. Available at: https://illinoislawreview.org/wp-content/ilr-content/articles/2014/3/Geis.pdf [Accessed 25 Jun. 2016].
Gulati, B. (2011). ‘Intention to Create Legal Relations’: A Contractual Necessity or an Illusory Concept. Beijing Law Review, [online] 2(1), pp.127-133. Available at: http://file.scirp.org/pdf/BLR20110300002_68407854.pdf [Accessed 25 Jun. 2016].
Irving, J. (2014). Enforcing Oral Contracts: The Presumption is Against You: Bean Kinney & Korman P.C. | Virginia, Maryland & D.C. Law Firm. [online] Beankinney.com. Available at: http://www.beankinney.com/publications-articles-enforcing-oral-contracts.html [Accessed 25 Jun. 2016].
McLauchlan, D. (2009). Contract Interpretation: What Is It About?. Sydney Law Review, [online] 31(5), pp.5-51. Available at: https://sydney.edu.au/law/slr/slr31/slr31_1/McLauchlan.pdf [Accessed 25 Jun. 2016].
Shiffrin, S. (2007). The divergence of contract and promise. Harvard Law Review, [online] 120(708), pp.710-752. Available at: http://www.law.harvard.edu/programs/about/privatelaw/divergence.of.contract.n.promise.shiffrin.pdf [Accessed 25 Jun. 2016].
Stilk v Myrick [1809]KB EWHC (King's Bench Division), p.J58.
