ISM Performance Contract
ISM members can download our free performance contract template.
Professional harpist and ISM Information and Advice Officer, Anna Wynne, offers guidance on contracts as restrictions begin to lift.
Please note, this blog is for information only and does not constitute legal advice.
Our country-specific advice pages continue to be updated regularly, but here is the latest snapshot for performing at weddings in all four nations, as of Thursday 22 April. Check the pages for the most up-to-date information and further details:
As a harpist, I have performed at numerous weddings and civil ceremonies over the years. One of the most important things I have learned is the importance of having a written contract with the client. Many musicians rely on verbal contracts which can be difficult to enforce. Others appear to rely on email threads as a form of contract: this is better than nothing, but a properly worded contract is a stronger protection for both parties for understanding their obligations and to know their rights in the event of any dispute. Indeed, it is essential that contracts must be clear to the consumer and avoid using unenforceable terms. The ISM has a contract template for performers which can be used for events such as weddings.
The COVID-19 pandemic has caused many people to cancel or postpone their weddings and events. This has caused many clients to argue that their weddings or events have been ‘frustrated.’ Frustrated contracts occur when it is impossible to perform the contract due to events outside of anybody’s control. It is a complex area of law which is governed predominantly by the Law Reform (Frustrated Contracts) Act 1943. The following aspects may help to protect against claims of frustrated contracts for future scenarios:
In this time of uncertainty, it may be useful to add a ‘force majeure’ clause. A ‘force majeure’ event can include pandemic; it can also include events such as war, famine or strikes. If you decide to add this type of clause, it is important to list the relevant ‘force majeure’ events in plain English and to explain what will happen to the contract if one of these events happens. For example, you could offer to postpone performance of the contract for up to six months or a year.
Many musicians have tried to rely on retaining a contractual non-refundable deposit. However, these are likely to be considered unfair terms under the Consumer Rights Act 2015.
To retain some of the monies paid prior to the actual performance, it is worth adding a clause which allows your time and effort for administrative work and rehearsals to be recognised. In the event of a frustrated contract, you may be able to retain a proportion of the overall fee for any work completed prior to the actual engagement. Even with this type of clause in place, in the event of a frustrated contract, you will need to evidence the work you are claiming the money for. If individual circumstances allow you to rely on the clause, the cost will have to be proportional to the amount of work done and you would need to be able to provide a written bill with a proper fee structure for each piece of work completed.
Even where a clause of this type has not been added, if the date of the performance causes the contract to be frustrated, eg due to government restrictions in place due to the Covid-19 pandemic, you should be able to use the same provision.
Over the past year, some clients have tried to rely on the legal doctrine of frustration as a reason to cancel the services of musicians at their weddings or events. Sometimes this has meant that the wedding or event has gone ahead (without the musician) but on a smaller scale. Under these circumstances, where government guidance has allowed for weddings to go ahead albeit with a restriction in numbers who can attend, a robust cancellation clause in the contract would help resolve these disputes as the client should not be able to rely on the doctrine of frustration.
When forming a contract, you may like to consider some more practical considerations so that both parties understand their obligations fully:
1. Provision for refreshments. Depending upon the length of the engagement, you may want to request only drinks or sandwiches.
2. Clarity about whether you are prepared to perform outside.
3. Where you agree to perform outside, stipulate that you expect to perform in a shaded, level area. The shade needs to protect you and your instrument from the sun or the rain. Also, you may want to state that it will be your decision on the day if you decide to perform outside, and that you can change your mind mid-performance, dependent upon weather conditions.
4. Provision for rest breaks. Most people stipulate between 10 minutes to 15 minutes after completion of the first hour.
5. Overtime charges and an explanation that you may not be able to stay past the agreed contractual finishing time.
6. Stipulate that amendments to the contract must be made in writing and by a certain date.
7. The contract should state what happens if the terms and conditions are not followed, ie the client must remedy the situation or you are entitled to refuse to perform but are still paid.
ISM members can contact [email protected] if you require any further help or information about how to structure your contracts for maximum protection, or if you would like us to review a contract you have been offered.