Can You Put That in Writing?

Local 802 Legal Corner

Volume CIV, No. 9September, 2004

Harvey S. Mars, Esq.

A Local 802 member has submitted an interesting question involving an all-too-frequent scenario encountered by musicians. This member wrote:

Recently, I went out on the road with a company. Payment for the tour was based on a “performance/rehearsal” basis. The tour book sent by the company noted that there would be eight performance/rehearsals in all for the tour. At the airport, I received a new itinerary (“tour book”) and discovered that one of the performances was not listed. There was no clear indication from the employer that this “performance/rehearsal” was cancelled, even though it was not included in the new itinerary.

Being that I was not informed of this change to the schedule prior to leaving on this tour, do I have any legal recourse with regard to obtaining the money originally promised for this performance/rehearsal?

This member’s situation unfortunately reminds me of a small claims court proceeding I recently handled, which involved a club date musician who was guaranteed a minimum amount of gigs. When a more lucrative job became available, she notified her employer well in advance of the dates she had missed and gave him an opportunity to find a replacement.

When she called her employer to notify him that she was available to resume her responsibilities, he told her she was fired.

I’ll always remember the first question the arbitrator asked: “Did you have a written contract?” The answer was no. Not surprisingly, the action was dismissed.

To answer this member’s question: a tour book itself is not a legal contract.

A contract is an agreement where there are mutual obligations binding on both parties (or, in law school parlance, “mutual exchange of detriment”). The tour book alone was not a binding promise that you were guaranteed those performances.

While there are occasions when a contract may be an oral one, oral contracts are often hard to prove. And they are often invalidated by operation of a legal principle known as the “statute of frauds.”

The statute of frauds requires that all contracts for employment must be in writing if, by their terms, they can’t be performed within a year of the agreement. New York General Obligations Law, section 5-701(a)(1).

For instance, let’s say that you tell me that you will wash my car next Saturday for $100. Even if we don’t put it in writing, that can still be considered an enforceable contract, since the time period is less than one year. That is an example of a valid oral contract.

But if you agree to wash my car every Saturday until you die, that agreement must be in writing, because the time period is greater than a year.

Or if you agree to wash my car on November 12, 2006, that agreement must also be put in writing, since it is more than a year from now.

Oral contracts — even valid ones — are extremely difficult to prove. But even so, this doesn’t apply in this member’s case, because his tour took place over a period of time less than one year.

Additionally, since this member’s employer’s payment obligation was admittedly based upon the performance/rehearsals which actually occurred, if a performance or rehearsal was cancelled, even during the tour, no payment would be required.

To prevent such a scenario, many contacts which Local 802 has entered into contain a guaranteed paid minimum number of performances and rehearsals. Hence, even if these performances were cancelled, payment would still have to be made.

I recently handled an arbitration involving a major symphonic band, with a contractual clause of this type.

Moral of this story: Try your utmost to get a union contract!

E-mail your legal questions to the editor of Allegro, Mikael Elsila, at