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Joshua
Joshua, Laywer
Category: Employment Law
Satisfied Customers: 25951
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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If in an email someone writes we understand why you had to

Customer Question

If in an email someone writes we understand why you had to terminate the contract, but no new contract was signed, would a judge accept the email as evidence of termination of a contract?
Submitted: 4 years ago.
Category: Employment Law
Expert:  Joshua replied 4 years ago.

Josh-2010 :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Josh-2010 :

What kind of contract is in question please - e.g. a commercial business contract or a consumer contract? What is the contract for?

Josh-2010 :

Who is seeking terminate the contract? Who wrote the email you refer to?

Customer:

A contract for building work secured through mybuilder.com and then finalised via written correspondence. The work started in Oct 2012, but in Nov the builder phoned my husband to say he had a family emergency in Scotland and had to leave. This is the context. I am arguing that there was no new contract, but I have just been shown by the defendant that my husband wrote what I quoted above. I am suing him under Supply of goods and Services, so I just want to know whether that email would be accepted as terminating the contract, even though the work was still ongoing? The builder had workers on site, and they made a mess of things and did not finish the work months after. I had to ask them to leave without work being finished. The defendant says the email shows he's not responsible as we terminated the contract, but my husband doesn't remember that. We agreed that the family matter called him away and accepted that the workers would finish the job.

Josh-2010 :

Thank you for that very comprehensive explanation. Could you kindly type exactly what your husband wrote in the email or copy and paste it in its entirety if this is simpler?

Customer:

Well, the problem is I've searched an we don't have evidence. But the defendant sent this:

Customer:

Hi Kieth,

Customer:

Thanks for your email. No we will not require a new builder. I have spoken to Jason with the view of him taking on the Contract to finish the work at the house. He is more than willing to continue and finish the house for the £10,000 left to complete the job. They are doing a v ery good job indeed, also thanks for the spreadsheet. It will come in very handy. Diana and myself do fully understand why you had to terminate the contract - your health and family must allways be priority." Sounds bad! But I don't have this in my file. Also the contract was with both of us. I didn't agree. And as things went from bad to worse, Keith has been in correspondence with me.

Josh-2010 :

Thanks; for the avoidance of doubt this is what the builder claims was sent to him by your husband as an email? Your husband disputes this email was sent by him?

Customer:

Yes, the builder, Keith says this email was sent to him by my husband. My husband does not remember this, but I remember him telling me that Keith had a family problem. I don't know why the email is not in our email file - but it could be that my husband deleted it as he's not the best at computers. I also think my husband meant that we didn't need to find any new workers as Keith's workers were still on site and they could continue, but he didn't use those words, he repeated the words that Keith had written in the previous email, lwhich was "I'm sorry for having to terminate the Building Contract", which I would never had agreed to. But if we're now not on safe legal ground, it might be best to walk away. So I need help to decide whether that email constitutes a new contract?

Customer:

Or what I meant, does the email legally prove that my husband agreed to terminate the existing contract?

Josh-2010 :

Thanks. Finally I hope do you happen to have a copy of the email the builder sent to your husband to which your husband allegedly replied as above? If you have it to hand could you copy and paste this too?

Customer:

I do now, as the builder has sent me the documents he is using in defence.

Josh-2010 :

Thanks. Are you able to copy and paste or is this difficult?

Customer:

I only have a hard copy - that's my point it's not in our gmail file.

Customer:

The fist email was from Keith: Thank you for meeting me to day on site... and once again I am sosorry for having to terminate the Building Contract because of my personal family matters and my illness and for your com plete understanding and support I do know a few good builders that will be so please to quote you please let me know if i can help in any way. I am more and happy tostay on until you find someone else.

Customer:

To which my husband wrote back the one I tyuped in above

Josh-2010 :

Thanks. The first thing I would say is if you have any doubts about the authenticity of the emails you will consider putting the builder to proof on the point and requesting a complete copy of the email chain including "email headers" which are bit like signatures showing the full address and dates of the emails. If necessary it is possible to verify the emails with Google using their server records but this is rarely necessary in practice. Obviously if the emails turn out to be counterfeit then the builder cannot rely on them. For the purposes of this however I will proceed on the assumption that they are genuine.

Customer:

Yes, let's assume my husband did write them. I could well believe he did, in the spirit of genuinely feeling empathy for his health problems - my husband is a lovely person, but sometimes a bit naieve about contracts etc.

Josh-2010 :

May I ask - after the original builder stopped work, did you continue to pay him or did you pay the new builder that continued the work directly?

Customer:

The arrangement was to pay the workers on site directly.

Customer:

We paid the workers but still kept to the original contract items and costings.

Josh-2010 :

Each worker individually as opposed to one of them who in turn paid the individual workers?

Customer:

We were told to deal with one who then paid his helper - there were only two left on site, who demanded cash, but we made him sign a book for all money. I was very unhappy about having to pay cash and complained about this, but I have all receipts and a signed booklet or cash payments.

Customer:

should read a signed book recording all the cash I paid

Josh-2010 :

What your husband has written (subject as above) is unhelpful - his words referring to another builder "taking on the contract" are the key words which are unhelpful. However it is not fatal as there is no express acceptance that he accepted that the original builder was released from his contract . A judge will not allow a builder to lightly walk away from his contractual obligations. However the further complicating issue is that you stopped paying the original builder but paid one of the workers on site. Evidence of payment is a key component of evidencing a contract and a concern I would have that the combination of the above inconclusive email and the alteration of payment terms could be sufficient to convince a judge that you had agreed to terminate the contract and instruct a new individual to complete the build. However I would suggest there is a relatively simple solution to the above situation which does not expose you the risk of a judge finding in favour of the builder as follows

Josh-2010 :

You continue to have all the rights under the Supply of Goods and Services Act regardless of who carried out the work. The simple solution is to apply to the court to join in the second individual you paid to complete the work as a joint defendant with the original builder and add a reply to the builders defence that in the event the court finds that he is not liable for damages to you because a new contract was formed with a second builder that the court finds against the second builder for such damages and apportions the damages between the builders as the court see fit.

Josh-2010 :

In this way you are not carrying the risk of who the court finds you have a contract with because whichever way the court decides, providing the court accepts your complaints regarding the work carried out one or the other must be responsible for the same by definition.

Customer:

There was an earlier email from Keith explaining the rate of pay for the worker... I see your logic and appreciate your advice. The problem is the second guy probably doesn't have any money - I'm sure he's a rogue trader who lives on cash and probably pays no tax. I would never have hired him, as he was a 'jack the lad' type whom I though unskilled.

Customer:

But this has been helpful, and I will certainly think about it .

Customer:

I meant untrained - he's not got any qualifications. He works for cash and would be I think impossible to get any money out of...

Josh-2010 :

That would be a potential problem in terms of recovering money but it is still better to have an order against someone rather than no one and of course you will not readily accept that the contract was terminated against the first builder so it is not a foregone conclusion. If the court does find that the contract was ended consider that you will still have a claim for any work that was carried out prior to the contract allegedly terminating.

Customer:

I am very grateful to you. Thank you for your time. I'll recommend this service to others.

Josh-2010 :

The main concern I have with the above is if it were the emails on their own I think you could be relatively confident in your chances. The main concern I have is the change of payment terms - this is damaging for you. You can attempt to explain it by claiming that it was agreed that you would simply pay directly the builders workers for expediency and were acting as the builder 1's agent in this respect but it is a slightly tenuous argument if truth be told. A judge may be prepared to accept it.

Customer:

I understand. You've explained this so well and so clearly! I wish all lawyers were this clear and straightforward! Thanks very much.

Josh-2010 :

Consider that builder 2 if he has any assets or income at all is possible to enforce against but I would concede it may not be easy. Remember though a court order does not expire so you may be able to recover once he become more established in the future. Far from ideal potentially but better this than the alternative which is a loss at court altogether.

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