Official Luthiers Forum!

Colin, you've fallen into the trap of trying to write like a lawyer (I come to this as a law professor who has advised commercially as well). The result is that it's not clear what you propose to do, or what the buyer has the right to do.

I'd rewrite this as an explanation to the buyer of:

1. What you will do - i.e. build a guitar to a similar standard to that of the samples the client has seen (don't say "at least", that opens up space for argument). Explain what hand built means in terms of cosmetics by all means, that's managing the client's expectations. Timing is important - currently you make no time promises at all, and I'd imagine a client would want the option to cancel if the work is excessively delayed.

2. Order cancellation. I'm guessing the client can cancel without giving a reason, but you don't quite say so. What happens to the money is completely unclear. You want something like: "If you cancel I will complete the guitar and attempt to sell it. If I do sell it ...". I can't make sense of the deposit refund but it currently seems to say that you will refund a maximum of 1/3 of the deposit if you sell the guitar at the contract price or better, which seems rather mean. It would be clearer to give examples: "If I sell the guitar for the contract price or more I will refund X, if less than the contract price then ...". And what if you don't want to complete the guitar (maybe it's too customised to sell)?

3. Inspection period. Client has 3 days to do what? Can he reject for no reason at all, or is it just three days to argue that the guitar is not up to standard, after which time you only have the warranty obligation? What happens to the money if any of this happens?

4. Warranty seems OK to me, adding in some caveats about proper care by the client.

The meaning of this document for legal purposes is not what you intend (so it doesn't matter how obvious something seems to you). It means what a reasonable person in the client's position would think it means. So I suggest you write it in the language you would ordinarily use (I bet you never say "deemed" from one year's end to the next) and then get one of your satisfied clients to read it and comment if they'd have been happy to sign it.

Chris, everything you say makes complete sense to me.
I'd forgotten about the "reasonable person" test, thanks for the reminder.
The "legalese" is more or less a copy/paste from someone else's and the more I read it, the less I like it, or rather feel uncomfortable about it myself.
This was prepared in only a few hours after a bit of looking around, as I had said to a customer I thought it might be a good idea to have something in writing.
I still hadn't got a deposit from him because of this, although I have imported wood and made a tentative start to his build.

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The name catgut is confusing. There are two explanations for the mix up.

Catgut is an abbreviation of the word cattle gut. Gut strings are made from sheep or goat intestines, in the past even from horse, mule or donkey intestines.

Otherwise it could be from the word kitgut or kitstring. Kit meant fiddle, not kitten.

I do think consulting with a lawyer in Scotland is a good idea. You can present to that person all of the different ideas that this thread and your other research have revealed, and that person can help you craft a good contract out of the various pieces.

I'm glad Danny's handshake experiences so far have been positive, and I hope that lasts. As a lawyer, though, I spend my days dealing with situations that did not turn out how the parties originally intended. Stuff goes wrong and catches you off guard. That's why you buy insurance, and that's why you do written contracts: to protect yourself when things unexpectedly go south. A good contract is the product of asking the question, "what can possibly go wrong," and it contains clear answers for all of those possibilities. Lawyers are a lot cheaper at the prevention stage than the containment stage.

That's hysterical Don and thanks for sharing. Here's one of mine that one of my attorney friends told me:

What do sperm and attorneys have in common?

It takes about a million of them to make a person.....



Sorry for the high jack Colin, I'll go stifle myself......

You may well have heard it, but - thought I'd throw one in the ring, I came across it just now, and it reminded me of this thread...........

An engineer dies and reports to the pearly gates. St. Peter checks his dossier and says, "Ah, you're an engineer -- you're in the wrong place."

So, the engineer reports to the gates of hell and is let in. Pretty soon, the engineer gets dissatisfied with the level of comfort in hell, and starts designing and building improvements. After awhile, they've got air conditioning and flush toilets and escalators, and the engineer is a pretty popular guy.
One day, God calls Satan up on the telephone and says with a sneer, "So, how's it going down there in hell?"

Satan replies, "Hey, things are going great. We've got air conditioning and flush toilets and escalators, and there's no telling what this engineer is going to come up with next."

God replies, "What??? You've got an engineer? That's a mistake -- he should never have gotten down there; send him up here."

Satan says, "No way. I like having an engineer on the staff, and I'm keeping him."

God says, "Send him back up here or I'll sue."

Satan laughs uproariously and answers, "Yeah, right. And just where are YOU going to get a lawyer?"

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The name catgut is confusing. There are two explanations for the mix up.

Catgut is an abbreviation of the word cattle gut. Gut strings are made from sheep or goat intestines, in the past even from horse, mule or donkey intestines.

Otherwise it could be from the word kitgut or kitstring. Kit meant fiddle, not kitten.

Great one! Here's another Satan related one (funny how we run into him a lot when it comes to lawyer jokes):

Satan appears one night to a young lawyer, just starting out in his career, and struggling a bit.

Satan says: "Young man, I will make you a giant among lawyers. You will win every case. You will rise to the top of your profession. Untold riches, respect, adoration, and oh, the WOMEN!!! What I ask in return is that you sell me your dear mother's immortal soul, so that she will suffer eternal damnation in your place."

The young lawyer is silent for a moment, and then says to Satan, with a suspicious tone in his voice:

"So, what's the catch?"

And I can't let Colin off without sharing my favorite Scot joke:

Why do bagpipers march when they play?

To get away from the #&%@* noise!

Couldn't resist posting one of my favorites about America.

The federal government is trying to decide whether The FBI, the CIA, or the Los Angeles Police Department is the most effective at apprehending criminals. The issue is to be decided with a test - a rabbit is put in a forest and each organization has to find it.
     The CIA goes in. They place animal informants throughout the forest. They question all plant and mineral witnesses. After three months of extensive investigation, they conclude that rabbits do not exist.
     The FBI goes in. After two weeks with no leads, they burn the forest, killing everything in it, including the rabbit, and they make no apologies. The rabbit had it coming.
     The LAPD goes in. They come out two hours later with a badly beaten bear. The bear is yelling: "Okay! Okay! I'm a rabbit! I'm a rabbit!

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The name catgut is confusing. There are two explanations for the mix up.

Catgut is an abbreviation of the word cattle gut. Gut strings are made from sheep or goat intestines, in the past even from horse, mule or donkey intestines.

Otherwise it could be from the word kitgut or kitstring. Kit meant fiddle, not kitten.

Hilarious! But of course, you have now landed on some list somewhere inside the NSA. If you see black helicopters, DUCK!!

It's OK, I'll drive them off with my bagpipes!

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The name catgut is confusing. There are two explanations for the mix up.

Catgut is an abbreviation of the word cattle gut. Gut strings are made from sheep or goat intestines, in the past even from horse, mule or donkey intestines.

Otherwise it could be from the word kitgut or kitstring. Kit meant fiddle, not kitten.

Not terribly unlike the exciting conclusion to the movie "Mars Attacks," where the sound of Slim Whitman singing Indian Love Call makes the martians' heads explode.

OK, I like bagpipes better than I like Slim Whitman. But a little of either one goes a long way.

Agreed entirely. The trouble is, I've found that those without integrity look quite a lot like those who have it.

Haha. You're right Jake. I have been fooled.

"The trouble is, I've found that those without integrity look quite a lot like those who have it."

If I felt I needed a contract I would let a lawyer draft it. I would explain to them what I wanted the client to know and understand. I would also have it give me every legal advantage possible.
I don't do commissions as such. If someone has an interesting proposal I might take it on, and give them "first refusal" when it is completed. But I don't build anything too personalized and don't buy a lot of expensive exotic materials (cheap exotic materials are O.K. ).

I largely agree with profchris' comments above. Dropping the legalize and using plain language is a good start for a non-lawyer attempting to draft a legal document. However, I must say that using plain language only gets you so far. The other half of the equation is knowing how to distinguish the "plain language" you need from that you don't. In my experience, this is a skill that comes only with training and/or experience. Anyone can draft a simple contract they feel good about when it's signed. It's only when things go south post-execution you say to yourself, "what was I thinking," or, what I see much more frequently, "I sure wish I would have said X in the contract."

My advice - if having a clear, concise, well-written agreement is something you feel strongly about using going forward, make a list of what you think is important to make clear in the agreement (you have a good start on that), find a well respected lawyer nearby, spend an hour talking with him/her, and invest in another hour to have him/her draft the contract for you. Then, at worst, when things go sideways with a client and there's an issue with a contract term (those "what was I thinking" and "wish I would have said X" statements are routinely uttered by lawyers to other lawyers in confidence I can assure you), you have someone besides yourself to blame.

Regarding your current draft, I agree with profchris' statement that he would rewrite it. I think any attorney would. You appear to have a good idea of what terms you would like to include, and many of those terms make sense generally. But, the terms could/should be made clearer, redundancies should be deleted, and the agreement could be better organized. I very much dislike the second paragraph. You appear to have dismissed this critique when it was lodged in an earlier post, but I suggest you reconsider. In my opinion, you don't need to do more than make clear the buyer wants to purchase a custom built guitar from you. The specs of the guitar should be included in the agreement and outline the client's expectations for the guitar. Your 3-day "satisfaction" condition precedent to acceptance is more than generous to the client (though, as profchris points out, the precise meaning of the satisfaction provision could be cleaner; this is a pretty rare condition these days, but it was quite common in decades/centuries past). Thus, all the extra language about the guitar meeting your typical standard (whatever that means) and, especially, the language regarding modern manufacturing and such is redundant, ambiguous, and generally unnecessary. There are many other things in the draft I would delete/add/massage, but you should leave that to your attorney. Please don't be offended by my comments or suggestions. It's a good first draft that, like most all first drafts, would be bettered by further careful editing.

I'm an attorney, but I'm obviously not your attorney. Any advice above is given as a concerned general member of this forum and for no other purpose.

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Aaron Craig

I'm going to disagree respectfully with Aaron ("respectfully" is usually code among lawyers for "the other guy's an idiot", but I actually mean it here in its normal sense), because of the differences in US and UK legal culture.

1. UK lawyers are far more expensive because there are proportionally fewer of us (and because of the way contingency fees work here, which no-one else wants to know about). Someone, probably Aaron, mentioned Maclay Murray Spens as a good Scots law firm - I've worked with them, they are indeed very classy, and accordingly expensive. I can't see any change out of £1k for them doing this work, and I'm sure they'd refuse to take it on for that reason. A local lawyer will still cost £300 or so, and may not do a very good job because they never see this kind of work.

2. Unlike in the US, the main point of this document is not to protect Colin when a dispute comes to court. UK citizens hardly ever go to court, because we (the system) make it expensive and worrying. Almost all disputes are settled. If a custom guitar dispute did ever go to court, then if the claim is under £10k it goes to a sort of judicial arbitration (the small claims process) which is far less bothered with the legalities and more focused on producing a fair solution (within the boundaries of the law, obviously). So precise drafting is less important than in, say, the kind of multinational cross-border deals I've advised on.

3. Instead, the document's main point is to manage the client's expectations so that if something doesn't seem right to builder or client, it will be reasonably clear whether there is any real cause for complaint. Legal drafting often can't achieve this because it's one lawyer speaking to another, not builder speaking to client.

So I reckon Colin would be almost as secure (legally and practically) using a letter which his existing clients are happy with as an accurate statement of what the deal involves.

If he can get such a letter together and wants more comfort, a review from a local lawyer would then be cheaper and less likely to add Scots legal language (lots of "heretofore", "whereas" and "notwithstanding" in my experience, which is not exactly how builders and clients normally talk).

I did not recommend any law firm. I have no experience handling legal matters across the pond and wouldn't claim to. I do agree that it's very unlikely a larger firm anywhere would agree to handle or even advise Colin on this matter, which is why I suggested he see a well respected local practitioner.

If I felt strongly I needed a written agreement, whether to manage the client's expectations or protect myself, I would gladly pay $600 US to make sure that it was done correctly. The legal situation in the US is similar based on profchris' comments. The money at issue would typically be small enough the matter would be thrown to a court one minor level above small claims court, where you could aptly represent yourself armed with a well drafted agreement and very little else. But still, the overall cost and time wasted in doing so is prohibitive and would be rare. Profchris, your comments almost suggest a formal "contract" is completely unnecessary. If the sole purpose of the "agreement" is to manage the client's expectations, what's the point? Why not do so in an informational brochure, via a website, or in a nice informal letter or conversation? A well written contract should do more IMHO. A poorly drafted contract will neither adequately manage the client's expectations (frankly, aside from including the build specs, it's unclear now precisely what that means or why its important assuming (A) the buyer is familiar with the Colin's prior work and (B) Colin is conditioning final acceptance on the buyer's satisfaction; if the buyer doesn't believe the work is up to snuff, he/she doesn't have to accept (the law would imply that the condition is subject to a reasonable person standard, but, as you say, that's really a moot point considering Colin is unlike to actually take the buyer to court and challenge the rejection)) nor offer Colin the protections he seems to desire. Quite the opposite, it's likely to create questions where they wouldn't have otherwise existed (both for Colin and the buyer) - a fact proven by many of the comments, including profchris', made in this thread. One other reason for spending a few euros on a lawyer now at the drafting stage . . . letters from lawyers are scary. They are also a whole lot cheaper than litigation. Get a lawyer on board now. When you have an issue with a client that you feel is spiraling in a bad direction, you can go back to the lawyer, explain the issue in 10 mins, and have a scary letter in hand with another half hour billed by the attorney that will likely move things in your direction. If you're unwilling to make such efforts, why fool around with a contract.

Profchris, I'm not trying to pick a fight. Your prior post begins by suggesting Colin rewrite the agreement. I agree with that statement and with the finer points you laid out in that post. The only disagreement seems to be the value of seeking out an attorney for assistance in seeing recommendations through. Might it be a waste of time - possibly. Might it also be very helpful, educational, and beneficial now and in the future to have the peace of mind in knowing the agreement is clearly written, unambiguous, and enforceable (the entire point of a good contract, right) and that a lawyer will have your back in defending the words written in the agreement if push later comes to shove - I personally think so (e.g., I'm a lawyer, but when I need some important "legal thing" done for myself or a family member and that "thing" is out of my comfort zone, I consult with or refer family members to other lawyers; to paraphrase Abraham Lincoln (himself a lawyer), he who represents himself has a fool for client). But the decision ultimately lies with Colin.

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Aaron Craig

I don't want Aaron (Aaron, do you ever watch Key and Peele? A-A-RON!!!) to take the heat for me. I gave Colin the name of the large law firm in Scotland. But, in fairness, I did tell him that it was a larger law firm, and it might not be a good fit for him. So, there's that.

You know, being a lawyer and having contact with acquaintances over the internet means that, from time to time, a legal issue is going to come up in conversation, and somebody is going to ask for help the way Colin did. I can't act as a lawyer for people in this situation, but I don't want to leave them stranded with no help. So, I pretty much always tell people that they need to see a local lawyer, and that's what I told Colin.

The idea that dealing with an inherently legal task like writing a contract is better done without the aid of a lawyer? Well, that's a pretty foreign concept to me. But hey, it is Scotland, so maybe it is appropriate that it is foreign to me. Nevertheless, I'm not going to change my standard response. When Internet acquaintances ask legal questions, I am always going to tell them to go talk to a local lawyer. I feel that I really don't have a choice, from a professional responsibility standpoint.

What's with all the lawyers on this forum? Don't you know you guys are supposed to be BUYING guitars not BUILDING them!

Yeah, I see how that can be discouraging. Well, the bright side is that you can always sell to dentists.

I'm afraid that as an academic I'm not really paid enough to commission guitars (and unfortunately have an aviation habit which eats the spare cash), so ask to be excused.

Aaron and Don give good advice (and sorry for not checking who named the firm, just didn't want Colin to be scared by their rates!). I guess my point is that there is a wide range of contracts, from buying an apple (where youd be a fool to engage a lawyer) to buying an airliner (where you'd be a fool not to). Using a lawyer is worthwhile if it adds value, and it's here we disagree.

Colin is a business seller and his customers consumers. Under UK law this means that most of the protections which a lawyer would write into a commercial deal are likely to be legally ineffective. So all the lawyer can really do is check that the deal is described accurately and completely. If Colin can achieve this himself there's no value add there. But if he were selling in, say, Texas, I'd be suggesting a Texas lawyer would be a wise investment.

However, there could be value in the peace of mind and education Colin would receive from a legal review - only Colin can decide that.

Plus my appetite for risk may be on the high side, given I pilot aircraft for fun. Probably worth reading anything I write in that light

Some years back on the OLF Howard Klepper who is not only a superb Luthier and builder but an attorney too provided a link to his commission agreement. Perhaps check out his site and see if it's still there AND if you want to use it email Howard and ask his permission too?

So... Assuming prof Chris has given a reasonably accurate picture of the legal system in the UK - I think it would be worthwhile to get rid of the "contract" and instead write up a "I want to have Colin make me a guitar - how does this work" sort of document to make sure expectations are clear all the way around.

So.. For example - "if I decide a deposit is required because of the specifications of this instrument - we don't have an agreement to build a guitar and I won't start building without it."

Or "if you decide to cancel this build after I have completed customized features - I will keep your deposit and you will be the proud owner of those unfinished custom features... For example - I will keep your deposit and you will be the owner of a half finished custom inlayed fretboard and headstock."

Etc....

I think those sort of things are quite valuable even if you are going to subsequently tender an official contract.

Thanks

How many of you guys here have actually played hardball with a client that did not like a commissioned instrument but whose complaints did not conform to the purchase agreement?

I'm guessing most of us would probably knuckle under, agreement or no agreement.

One thing IS important. Get payment in full BEFORE the instrument is delivered!

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It's not what you don't know that hurts you, it's what you do know that's wrong.

Wise advice! As the Louvin Brothers said: "That'll be cash on the barrel head, son."