Ask a lawyer on the topic of Contract law

Breach of contract, even though no contract has been signed and only a commitment has been sent via email.

October 13, 2010 | 40,00 EUR | answered by Bernhard Müller

Dear Sir or Madam,

I am self-employed and work as a booker for several clubs in Germany. A few months ago, I sent a booking request to a band for a music club. After negotiations, the concert date was set for November 20, 2010, with an agreed fee of 1500 euros and accommodation in a 2-star hotel in Augsburg.

After the owner of the music club expressed concerns about the concert, I tried to renegotiate. At that time, the date was not confirmed by me via email. During the renegotiations, a 60/40 revenue split deal was offered to the band, meaning the band would receive 60% of the door takings, and the music club would receive 40%.

This proposal was rejected by the booking agency, who insisted on the confirmation of the 1500 euros as there was another inquiry for that date. To avoid losing the band, I confirmed the date via email.

A week later, I, acting on behalf of the music club owner, cancelled the band's performance as no contract had been signed and the risk was deemed too high. The booking agency then informed us that this was a breach of contract and demanded that the 1500 euros still be paid. We were given a deadline for a response, which we could not meet. As a result, I received a letter from the booking agency's lawyer demanding payment of the fee.

I have scanned and attached the letter as well as the unsigned contract.

My question is: can the confirmation email be considered equivalent to the contract, and can the booking agency demand payment of the full fee?

A common argument of the booking agency was that the band had a performance in Dortmund the day before and it would only be profitable if a second date was confirmed. Upon further investigation, I discovered that the other performance in Dortmund had also been cancelled. When inquiring at the music club in Dortmund, I was informed that the concert was cancelled because an external organizer, who has since filed for insolvency, wanted to host it. Therefore, the band incurred no costs.

I look forward to your response.

Yours sincerely,

Bernhard Müller

Dear inquirer,

There is generally no formal requirement for the appearance of a band. Therefore, the contract can also be concluded via email. Since a fee of 1,500 euros per day was agreed upon, according to § 621 No. 1 BGB, each day can be terminated for the next day if nothing else was agreed upon in the contract.

Your revocation may have indeed been such a termination, so you would not have to pay any damages in that case.

If it was agreed in the contract that termination before the concert is not possible, it would indeed constitute a breach of contract. The compensable damage would then also include the lost profit.

Now, regarding your specific contract and the letter from your colleague, which were finally delivered with some delay. Your obligation to pay damages does indeed arise from No. 14 of the contract. Whether the contract confirmation was on the same sheet as the contract or in a separate email is irrelevant, as long as the confirmation email clearly referred to the contract. As stated above, there is no formal requirement.

Best regards,

Bernhard Müller Attorney