legal, contracts, contractorsWe hired a developer to finish a component of our App for ~15K, however, instead of taking 3 months, it has taken 8 months and still isn’t complete. Not only that, they are refusing to continue working on the app or releasing the code fully commented and detailed. They are now contracting with another client and state they have no time, yet, we are out thousands of dollars. By email, and message, it was stated the project would be completed multiple times months ago, so we kept paying the developer in order to hit that timeline. In California, by UETA rules all digital communications are binding and superseding of the original contract if the original contract does not state the opposite.
What can we do? Can we sue? Can we recover the full amount of expense? What has been the communities experience with this type of situation?
Devon
Devon:
So sorry to hear your news. I think we have all been there in one way or another. I am a lawyer in Canada but I have spent the last 20 years as a Co-Founder in tech startups so I have a lot of experience hiring freelance developers. As you probably know going to court is very expensive and not really practical unless you have a huge claim. Although most claims settle before they go to court, you will still spend a lot of money on legal fees. (I have many colleagues who are litigators). In Canada we have the option of Small Claims Court but you will still incur legal fees because it is not really practical to represent yourself.
It is understandable that you are annoyed and want to get redress but you have to keep your eye on the prize which is your code. All of this legal stuff will simply complicate your life and cause huge delays. And it sounds like you don’t want to wait forever for your code which is what will happen if you go the legal route.
Your best bet is to be as nice as possible to the developer and get what you can from them. If it becomes apparent that the chances of getting fully commented code are slim to none then you have to stomach your losses and take what you can get. At least that way, you can move ahead with your project.
I realize this is not ideal but as a litigator friend of mine says even if you sue for a glass of water you won’t get the whole glass of water back. You will get some part of it. That’s the reality.
In future, I would structure your contracts so that you break the project into pieces with instalment payments to be made upon completion of each component. You also need to define what is expected (e.g. fully commented, working source code) and the project timeline. As an extra incentive you may have a penalty for late delivery (Haven’t had to do this before but it’s an idea). That way the developer knows upfront that they won’t get paid unless they deliver the fully commented code. You also lessen your risk. If the developer does not deliver as expected on the first component you can cut your losses and your project will still be salvageable. Also make sure you have good termination provisions so if it becomes obvious that the person is not performing you can get out early.
In the end, you have to learn to trust your gut instincts. If the developer is a pain from the beginning they will probably be that way throughout. Before you engage a new developer on a long term project you should really try them out on a small project to see how you work together.
I’m sure this is not what you want to hear, but I am sharing my practical experience with you and please do not take any of this answer as “official legal advice” because it is not.
As much as it hurts, consider this experience to be part of your education. It’s cheaper than university tuition :)
Hope it all works out for you. Don’t give up. Re-group and figure out how you can move forward and get your App done.
The action you take will be decided by the your contract. You need to talk with the developer, not email - Try find an arbitrator - it will be cheaper than and faster than a court. Your local city hall should advise. Try find a middle ground.
The problem you now have is if you pursue thru the courts, you’ll have to pay a lawyer. You are not guaranteed to win as the adjudicator will have to review contract and all other written communication. I’ve been a contractor for 20+ years and am familiar with issues such as yours. You are not guaranteed to win as the courts might decide your expectations were insufficiently clear or the goals of the project changed over time (which would mean both of you share responsibility for the problem you now face). The developer might have been delayed because they spent sometime waiting on you for feedback. Even if you were to win, a judge might calculate the penalty differently - it could but does not have to cover all the money you have invested so far. You need to support your entire claim with evidence, so if you want to claim for the funds you paid the developer and loss of business, you will need to show how you calculated the figure for loss of business. I know of someone in the UK who was awarded 1GBP because they won their case but could not prove the financial losses incurred.
Finally, and I know it might not be something you want to hear right now, but I answered someone else’s question on “Do I need a contract?” - I think you should have a read. https://freelancing.stackexchange.com/questions/5990/should-i-ask-every-client-to-sign-a-contract/5991#5991
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