Tim communicates only through dance, Sue by morse code and Obi by mime – can they form a contract? By James O’Connell

Although one shudders to think what hellish performance art might be 'perpetrated’ by such a collaboration, it is possible for the three to form a contract communicating only via their respective skills.

Generally speaking, the law doesn’t care about the form by which a contract is concluded (smoke signals anyone?) provided the five criteria for forming a contract (set out below) have been met.

Most businesspeople think of contracts in terms of written documents. But many contracts involve neither writing nor speaking, e.g., using a self-service till in a supermarket – those contracts are created by actions which demonstrate intention to be bound by an agreement. Dance, mime and doing morse code on a torch are all types of action.

So, the main hurdle faced by our artistes will be the limits imposed by their chosen mode of communication – as Jane Austen would surely have written had she been a commercial lawyer: “It is a truth universally acknowledged, that it is hard to convey a conditional share buy-back clause through interpretive dance.”

A contract is just an agreement that the law will enforce. All contracts are agreements, but not all agreements are contracts. To create a contract:

1) someone must make an offer,

2) someone must accept that offer,

3) there must be something of value (consideration) exchanged between them (hence the notional £1 often seen in contracts),

4) there must be an intention to create a legal relationship,

5) there must be enough agreed terms to have a workable contract.

There are (inevitably) second division criteria too: for example, courts will not enforce agreements to do illegal things like selling cocaine, and the parties involved need to have ‘capacity’ (e.g., toddlers and those with serious dementia don’t have it).

The two other disadvantages our artistes face are:
(a) How can they be sure they are agreeing the same thing? and
(b) How they can record with certainty what has been agreed?

In my experience even the most honest of people can still be subconsciously prone to remembering things in a way that is, shall we say, not necessarily to their disadvantage. Further, if an HMRC (tax) Inspector wants to see the agreement, they might get annoyed at having a torch turned on-and-off rapidly in their face for two hours whilst someone dances around a mime trapped in an invisible cell.

So:

• be careful - it is easier to form a contract than most people think, and so unintended contracts happen every day when one side sees an advantage in pressing the point,

•  an ongoing negotiation by email or even text (mime-based negotiations sadly being a lost art) could unintentionally crystallise into a binding contract once (1)-(5) above are met- so do make lavish use of the phrase “subject to contract” during discussions,

• make sure you get your terms in before the contract is formed. Anything raised after the contract is made is irrelevant. If the deal is sealed on the phone, then it’s too late to follow up by sending on your terms and conditions by email.

And don’t forget to dance the all-important ‘Prices are exclusive of Value Added Tax’ clause.