Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Monday, October 18, 2004

Alleged breach by Salvation Army in re Davis: Morals clause in contract?

Ref There are many unknowns about the litigation between Davis and the Salvation Army.

  • Contract appears to have existed

    We won't know whether Salvation Army has a defense until we see the specific contract terms. Mentioning a "cancellation fee" suggest that there was a contract, signed, but they're canceling.

    Fabian said officials at the religious charity recently told his clients they no longer wanted Davis as a speaker, and they would pay neither the $15,000 speaking fee nor the $7,500 cancellation fee called for by the contract.

    However, defense argues that there was no contract, it was not binding.

    The lawyer, Michael G. Watters, said, "There was not a binding agreement, and it just didn't work out for a variety of reasons." [In Dispute, Patti Davis Sues Salvation Army By ANTHONY RAMIREZ Ref]

    Published: October 19, 2004

    Unclear why they are talking about a demo-tape at the same time they're talking about a contract. Whether or not they make a decision related to a demo-tape is irrelevant: If they've made a decision after agreeing to the contract, then that's a cancellation.

    "The decision not to use Patti Davis had nothing to do with stem cell research," he said. "She sent a promo or demo and they decided it was not their cup of tea. They look for upbeat speakers."

    What reason they cancelled is irrelevant, so long as there was a contract, which defense argues was not binding. That remains a matter of law for the court to adjudicate.

    Defense appears to suggest that there was no agreement, that there was no cancellation, and that the basis of the decision to not use her had nothing to do with the cancellation-terms in the contract.

    This argument will only work if there is, in fact, no agreement, and plaintiff can provide no evidence of deal-points or a confirming message, note, fax, or other document confirming the deal points.

  • Agreeement of parties

    A booking through an authorized agent is a contract. What the other party did, thought they were agreeing to, and whether there is a final agreement remains to be seen.

    Davis was scheduled through her booking agent, Greater Talent Network, to speak at a Salvation Army event in Santa Rosa, Calif., on Nov. 19 for a fee of $15,000, said her lawyer, Lawrence Fabian.

    Remains to be seen whether there was a meeting of the minds; or whether defendant chooses to stipulate that there was no formal agreement; or that the agreement was speculative; or that there was no actual agreement; or that the points of the contract were not agreed to.

  • Damages

    Asking for treble damages for alleged contract breach:

    The lawsuit asks for compensatory damages of at least $7,500 and punitive damages up to three times the compensatory damages.

    Again, we don't know the exact language of the contract so we can only speculate whether the ultimate claim of $60,000 will survive summary judgment.


    If there are deal points, and Davis' booking agent can produce evidence of the deal points agreed to, plus the contract, it appears as though this will swing to Davis' favor.

    However, if there is confusion about the agreement, or no evidence of a contract, or that terms in the contract were not agreed-to, or that there was a moral-clause related to "undesirable topics" that released the other party from the obligation to pay a cancellation fee, then perhaps defendant might have a valid defense.

    At this point, the specific terms of the contract are unclear; and the basis for contract formation are unknown. If plaintiff's allegations are substantiated by evidence of both a contract, deal points, an agreement to the terms, and an understanding that the terms involved a cancellation, then it appears as though this is in plaintiff's favor.