VIC How Strong are Verbal Contracts?

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Kusanagi

Member
5 March 2017
3
0
1
I couldn't see a specific forum topic for copyright so I'm hoping this one's alright.

Last year I produced an independent short film that required the use of an old car, in this case a 1965 EH Holden. By independent I mean it was made by some students, and friends of friends. We successfully raised $3000 through crowdfunding that went towards production costs, and still found ourselves in the negative. We shot very sporadically throughout the year due to crew availabilities. We started in May and completed principal photography in December.

I had to find an old car to use in the film. I first found a guy with an old Ford and met with him to discuss costs. He wanted at least $1200 for four days, and we didn't actually know how many days we officially needed the car at that point. We declined the offer as it was too much.

My neighbour (also an old car club member) thought that quoted price was crazy and introduced me to his friend of a few years who had the Holden EH. I met with this guy about using the Holden in person at my house with just his son and myself. We discussed logistics of scheduling, driving and what his insurance covered, not money. He was happy and very willing to provide the car for our use. The only figures mentioned were how we turned down the $1200 from the other guy. No financial guarantee was spoken or written down.

The owner of this Holden has come out this past week demanding $2500, $250 a day that equals 10 days (even though we only used the car for 7), as apparently agreed upon because he wants to put a new engine in it, whilst also claiming club permit fees and insurance costs, which were never spoken of. He believes I verbally agreed to this, where I can swear on my mother's life I did not, particularly as the one in-charge of costs in regards to car hire.

There is literally no written or physical evidence of an agreement; not in SMS, email or paper form. All fuel used was paid for by us. This short film is intended to make no profit what so ever. It was only planned for film festival submissions. He is now threatening legal action against us.

I'm wondering how strong of a case verbal contracts can hold up without witnesses to the conversations that took place? I'm unsure what his son would say.

Feel free to ask me any questions. I'm contemplating a consultation with a copyright lawyer, if consultation fees aren't too high as I have only returned to work from injury. I like the platform forums offer for getting various opinions.

Thanks everyone.
 

Iamthelaw

Well-Known Member
13 September 2016
412
86
794
This isn't a copyright issue - It's whether there was a contract formed. Having said that, it would be up to him to prove that a contract existed between the parties. One question that comes to mind is that surely for lending you the vehicle for roughly a week there must have been something in it for him (money or mention in the credits etc)?
 

Kim Walters

Well-Known Member
LawTap Verified
18 July 2016
46
15
189
Australia
lawtap.com
This is a question of contract law rather than copyright law.

Everything depends on the communications as to whether an offer and acceptance came into place so that the parties can be said to have entered into a contract.

An agreement will not be legally binding as a contract unless the requirements of contract formation are satisfied. The requirements include an intention to create contractual relations, agreement, consideration, certainty and completeness.

A contract may also be implied from conduct.

The problem with verbal agreements is that they are difficult to prove. The enforcement of an alleged agreement is challenging as evidence is needed to prove the contract.
 

Kusanagi

Member
5 March 2017
3
0
1
It was all a very casual agreement. The word contract was never uttered, or even thought of in my head. More like a mate who knows a mate can help you out situation. The Holden owner in question has been to my house (parents) on occasions and helped my father with his car, as well as having known my neighbour (who recommended him in the first place) for several years due to living next door to his wife's mother. My father and the neighbour who recommended him are completely surprised he's suddenly asked for money like this.

We catered to him to the best of our ability; providing him with professional quality still images of the car from production, covering all fuel costs, obviously offering to pay for any damages to the car as a fault by us, provided him with an edited high-end video of drone footage of the car with his desired credits that would had cost anyone $800 to get done personally (we were lucky to find a startup), a thank you credit to him, his wife and his wife's father who owned the car who had past mid 2016; we even allowed his son, at his request, to come along to the set with us to help out since he was studying acting, and finally a first batch $100 bottle of spiced rum from The Rum Diary in Melbourne. Some of these items were offered on the first meeting, others offered along the way as extra thanks.

At the time of our meeting, all days requiring the car were not confirmed; I think only 4 were. We just casually asked if the car was available throughout the year when we needed to. We didn't hear a single complaint or request from him about anything financially related until this past week.

I can say with the utmost confidence I did not agree on $250 a day, or anything close to the number $2500. As if a student like myself, who currently does not even have half that amount in the bank, would not take such a significant number into account.

Release sheets are apparently not required for featuring cars in films, only brands. But since we are not expecting to profit a cent from this film, we're not chasing up Holden to get a release for having the Holden logo in one or two shots for maybe 5 seconds. The number plates can be easily removed from footage.

This was a solution suggested to me:

Wait a few days. Then tell him under legal advice you are not obligated to pay him anything, as he has no claim to the Holden branding - and unless the vehicle has distinctly recognisable artwork painted on it - any footage of it comes under the "fair use" clause.

Secondly, as there was no written agreement and no amount agreed upon anything to the contrary is hearsay. As a token of good faith you'll pay $100 a day for the 7 days used - for a total of $700, however any and all payments must be made to a registered ABN. If this is unacceptable you're happy to go to small claims.

Thank you for the input everyone.