verbal contract

[suekd]

 

My son had a transport business which stopped trading in 2002.  He has since moved abroad and we have lost contact with him.  However while he was still trading one of his vehicles broke down and he asked my husband to contact a breakdown company to tow the vehicle back to the depot as he (my son) was away on another driving job, my husband did as he was asked.  Shortly afterwards he ceased trading.  Now the owner of the breakdown company has sent a letter to my husband informing him that he intends to sue my husband for the cost of the breakdown recovery as he had made a "verbal contract" with him.  This is because he is unable to contact my son.  Can he do this?

[JSB]

I think the answer is almost certainly yes unless your husband made it clear he was doing it on behalf of your son.  Even then, the law will probably say that your husband acted as your son's agent in the matter and as such would be liable.

[Miss Zippy]

As far as the breakdown company is concerned, their contract is with your husband.  Unless your husband made it clear at the time that he was acting on behalf of your son and that the contract would be with your son's company (in which case your husband would be a 'disclosed agent' and would not be liable for payment)then I'm afraid there is little you can do except pay up.

[Sludge]

If all that your husband did was to phone the recovery company and say something like "I am speaking at the request of Ivedunarunner (Ltd) who would like you to tow in their vehicle" and the recovery company did so by towing it to your son's yard and later sending your son an invoice then the answer is no. They clearly understood and accepted it to be a contract with your son. There is no "verbal contract" with your husband (it would take some specific actions to form one which are missing from what you say and then they would have invoiced your husband and not your son) and it is just a try on by someone at the recovery company. Write simply saying "In reply to your letter dated ? I have no liability whatsoever to you in the matter you allege or in any other matter".

[El D]

at the time your husband may well be acting as an agent of the company - specialist advice is called for really, although depending on the amount it might not be worth it.

[kernowman]

I�m with sludge on this one. The guy has presumably spent the last two and a half years pursuing your son for this money. Now he thinks he can convince a court (on the basis of an unrecorded conversation) that both he and your husband believed they were the parties to the contract all along. Sludge�s suggested reply is more polite than mine would be.

[kernowman]

Someone may be authorised to negotiate a contract on behalf of somebody else. The person who negotiates the contract is called an agent and the person on whose behalf s/he is acting is called the principal. Any contract is made between the principal, rather than the agent, and the other party.

[erimus1]

I can tell you that the answer is definitely yes - for a legal contract to take place, there must be 'privity' - in other words, people who are party to the contract. In this case, it is your husband and the breakdown firm that had privity, and therefore liability is borne by your husband. Unfortunately, your son was not privy to this contract, and so, has no involvement. He may, however, be liable for payment directly to your husband. - The only problem that may arise here is 'intention to create legal relations' with a family member - it is difficult but not impossible to prove that a contract was desired by both parties.

One way out of this would be to state that you were acting in the capacity of a company representative, and pass the information on to the receiver or tell the breakdown company to contact the receiver - it is illegal to pursue a debt that is being dealt with be the official receiver.