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Need 'legal' advice

Discussion in 'Band Management [BG]' started by gordon5377, Jun 21, 2014.

  1. gordon5377


    Mar 15, 2009
    OK, so my band is/was supposed to play a gig on July 5. On Thursday this week two of our guys left the band leaving three of us to regroup. We contacted all the clubs with upcoming shows about not being able to play but the guy who we are playing for on July 5 is threatening legal action against. We did not sign anything but we have emails where we say we would play. There is no other contract in place. My question is, can he really sue us? What legal speak can I give him to get him off my back?
  2. Not yet

    Not yet

    Mar 26, 2012
    You have any sub backups? I bailed today on a contracted Casino gig cause of the flu and got a fillin.... Usually always pros ready to take a gig if they're not booked
  3. buldog5151bass

    buldog5151bass Kibble, milkbones, and P Basses. And redheads.

    Oct 22, 2003
    Anone can always sue, but I'm not sure what for. The only thing I can see is alleged lost revenue. What exactly was your agreement?

    Are we talking bars, or bigger venues? Can you get sub players for your band, or another band?
  4. gordon5377


    Mar 15, 2009

    Actually, this is a volunteer fire department's 4th of July celebration. They want to sue us for the money they spent on advertising and any additional cost to get another band.
  5. buldog5151bass

    buldog5151bass Kibble, milkbones, and P Basses. And redheads.

    Oct 22, 2003
    Can't you get a replacement band? Again, they could, but I've never seen legal action on something of this level.
  6. Dave W

    Dave W

    Mar 1, 2007
    White Plains
    LOL. They're not going to sue you.
    petrus61 and IGotGas like this.
  7. Tony In Philly

    Tony In Philly Gold Supporting Member Supporting Member

    Oct 25, 2007
    Filthydelphia, USA
    A lawyer once told me that "anybody can sue anybody for anything". I think this guy is just bloviating.
  8. Maybe not. But they may also show no interest in preventing your domicile from burning to the ground in the future.

    This would be a tort or civil wrong -- Breach of contract, likely anticipatory. Since you will not be performing when performance is due, the non-breaching party (your local pyrophiles) has the option of treating your breach as immediate, terminate the contract, and seek damages. The key here is whether or not a contract actually exists in the legal sense. A binding contract usually has three components:

    • Consenus ad idem ("mutual agreement"). Basically, both parties agree to the terms of the contract.
    • Animus obligand ("intention to create legal relations"). The prevailing presumption is that both parties agree to be legally bound to the contract unless the contract expressly states that the parties have no interest in dealing with litigation.
    • Consideration -- anything of value promised to another when making a contract. You're promising your services as musical entertainment and the fire department pays you for services rendered.
    This is a vastly simplified summary of one aspect of tort law, but you have ammo provided the following:
    • You're playing the gig gratis. If there's no consideration (i.e. Federal Reserve Notes or something else of value) on the client's end, there's no contract. Without a contract, there's nothing to breach. In your emails, did the fire department actually agree to pay you?
    • Not all agreements are contractual, so if there's no indication in the emails that the parties intend to be legally bound, you're left with a non-enforceable "gentleman's agreement". This can serve as a possible defense to failure to perform.
    There is the possibility of your emails being construed as an implied-in-fact-contract, which isn't really a contract, but the legal substitution of equity or fairness in place of a formal contract. The courts view this as a contract that should have been formed, even though it fails the legal sniff test. In this case, the plaintiff is entitled to whatever the performance of your band would have been.

    All this may look a little scary, but litigation is a pain in the ass. Because the disputed amount likely falls into small claims court, the rules change to make life simpler. Nonetheless, there's the cost of your time and the plaintiff's time, filing fees, if the FD opts to bring in a lawyer, there's yet more outlay. It's not nearly as expensive as a knock-down-drag-out civil fight, but it's not cheap. Is the FD willing to risk a possible house fire or other emergency because a firefighter was dicking around with this silly thing? Is the city/township really willing to allocate tax money for the local solicitor's time? If you add these things up, it's quite possible to get close to or even exceed what the plaintiff would be seeking in damages. And there's the likelihood of the judge's *** factor, wondering why the fire department is suing a band.
    petrus61 likes this.
  9. Stick_Player

    Stick_Player Banned

    Nov 13, 2009
    Somewhere on the Alaska Panhandle (Juneau)
    Endorser: Plants vs. Zombies Pea Shooters
    Tell him to hire a DJ, and a couple dancers - preferably bikini-models.

    The crowd will love it.
    jdy likes this.
  10. I would assume they would understand you bailing due to unforseen band issues, but I guess some people are just really pushy about getting a band to play. I was going ask my mother (since she's a lawyer) about this so I could give advice, but she's on vacation. Good luck with it, though
  11. Better yet, hire a dude who looks like Tiesto (or another one of those EDM douches) and put up a bunch of posters saying "Tiestito! Tonight only!" Have the dude stand there with a MacBook Pro and just play Tiesto's stuff. Technically, it's not false advertising...
    PortlandBass77 and RandomBox like this.
  12. LOL..... that might work better than "Free Beer" the band
  13. Nev375


    Nov 2, 2010
    Ask to join their side and sue the two dudes that left.
  14. BassCliff


    May 17, 2012
    So. Cal.

    We played Disneyland last week with two subs in the band. You've even got time for a rehearsal or two if you need it. Get to work! Don't damage your reputation.

    Yes, they can take you to small claims court. Even without a signed contract you may be liable for losses. Signed legal contracts protect both parties. We use them for all of our gigs.

    Thank you for your indulgence,

    Last edited: Jun 22, 2014
    IGotGas and Winfred like this.
  15. joebar


    Jan 10, 2010
  16. M0ses


    Sep 11, 2009
    Los Angeles
    IANAL but both my parents are so I have a good grasp of the basics. The threat of lawsuit here is a joke. Volunteer fire department? Yeah, I bet they have funds for a totally ace legal team and can totally afford to pursue you for such a ridiculously small claim and on such a weak case. Not a chance. It would be better for your reputation to find subs and play the gig, but the reputation of a band that no longer exists isn't worth much anyway.
    IGotGas likes this.
  17. IAnal too but not with the volunteer fire department!
    catcauphonic and Helaskold like this.
  18. hrodbert696

    hrodbert696 Moderator Staff Member Supporting Member

    Of course, if he really insists you can go ahead and play the gig with just the three remaining members and see how he likes it... Maybe he'd prefer that?

    Depending on the music you play, I'd suggest getting a sub and doing it if you can, or gig swapping with another band if you can't. But if you can't play it, you can't play it. As for getting sued - the legal speak you want is, "Go for it. See you in court." Unless this is a huge gig for thousands and thousands of dollars, I can't see you guys having any liability that would be worth anyone's time to go to court over.
  19. Of course they CAN sue as you have technically created a contract by simply agreeing to play in the first place. It would be a pretty pathetic action if they did however... they certainly wouldn't stand to gain much (if anything) unless I've pictured this situation wrong and this is some sort of monumental event as a few have already mentioned. I won't throw any 'real' legal advice your way but consider the fact that you probably only agreed that your BAND under whatever you may call yourselves would play. 2 individual members probably don't mean much to them...you could always find a few mediocre replacements and fulfill your end of the obligation. Of course even then they could still probably argue that you've already repudiated the contract and sue for breach, or if they did indeed value the participation of you missing members claim that the contract was frustrated as a result of them walking out... and this is why contracts law is such a fun little puzzle! ;)
  20. guy n. cognito

    guy n. cognito Secret Agent Member Gold Supporting Member

    Dec 28, 2005
    Nashville, TN
    The chances of this guy retaining a lawyer, spending thousands of dollars to sue a band on an email contract are extremely slim. He is simply trying to scare you.

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