Six Elements for Enforceable UK Crew Contracts
Under English law, parties to a contract are largely free to enter into whatever terms they choose. That said, in order for your crew contracts to be legally binding and therefore enforceable, there are six elements which must be established.
First, one party must extend an offer to the other in the form of a promise to enter into a contract on certain terms. The offer must be clear, precise and capable of being accepted (i.e., it must be made with the evidence that no further bargaining is to take place).
Let’s say a production company sends an email to an HoD stating that “the fee will be in the range of £1,000 - £1,700 per week. Not yet closed and let’s discuss further but do you agree?” This email is unlikely to constitute an offer, as it’s not complete or capable of acceptance and relies on further negotiations.
Next, the offer must be “accepted.” Acceptance must be final and unequivocal, with no variations to the original offer. If any variations are made, the correspondence will constitute a counteroffer rather than acceptance.
If a producer emails a crew member with a weekly engagement at the rate of £1,000, and the crew member replies, “we’re agreed on £1,200 per week. I’ll start in the morning,” this would constitute a counteroffer and not an acceptance. The ball would be back in the producer’s court to accept, reject, or propose another counteroffer.
Contracts are based on the concept of reciprocity, which means that there must be some form of exchange of promises between the parties (“consideration”). Note that consideration doesn’t have to be money; a party could agree to perform a service in exchange for the other party doing the same.
English law doesn’t require consideration to be “adequate” (i.e., of a specific amount), just “sufficient” (which can include amounts as small as £1). For example, if a production company agrees to let a university student shadow a producer on set for a few days (without undertaking any work), the arrangement won’t constitute a legally binding contract as it doesn’t include sufficient consideration.
Certainty of terms
Unless all of the material terms of a contract are agreed, there’s no binding obligation between the parties. The agreement between the parties must therefore be complete (i.e., not lacking any essential terms, such as payment, amount of work or period) and the agreement must not otherwise be uncertain (e.g., because the terms are ambiguous or vague).
Certainty issues are common in the film and TV industry as parties often resort to several terms being left “to be negotiated/agreed in good faith,” “to be confirmed,” “to be dealt with at a later stage” or “to be mutually agreed.” This is often an inevitable product of production schedules and budgets being adjusted until the final minutes before production. However, even if these terms are used, parties should consider drafting the mechanism to resolve any deadlock or inability to agree.
Parties must have legal capacity in order for a contract to be enforceable. The laws relating to contractual capacity can be complex, but the starting point is that all individuals are presumed to have capacity to contract. However, this is subject to various exceptions (e.g., in cases involving people who lack mental capacity, people who are intoxicated and minors).
Separate to the issue of capacity is the concept of contractual authority. Although this doesn’t form part of the test for capacity, it’s worth noting that a party who signs on behalf of someone else must have the authority to do so.
Intention to be legally bound
Both parties must intend to enter a relationship that has mutual enforceable obligations. In commercial, business or professional contexts, the intention to be legally bound is presumed, so any person who claims not to have had the necessary intention must prove it.
In the film and TV industry, this issue typically arises during pre-contractual negotiations, as these can take months. If a party doesn’t yet intend to be bound, it’s important to clarify this during the negotiations. It’s helpful to state that terms negotiated remain subject to a fully signed contract and that a party doesn’t intend to be legally bound until that point. However, this isn’t conclusive evidence of the parties’ intentions; the principles above can be deemed to take precedence over the use of “subject to contract.” There’s always a risk that acceptance of terms can be implied by the conduct of the parties.
Do contracts need to be in writing?
Other than in limited situations (e.g., assignments of copyright, sales of land and transfers of company shares), there’s no general requirement for contracts to be agreed in writing.
That said, it’s best practice to have signed, written (e.g., digital) contracts in place before your crew step foot on set.
For more information on contracting crew in the UK, see Getting your crew contracts in place: A guide for UK productions.