How best to break a contract for personal services due to non-performance?

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How best to break a contract for personal services due to non-performance?

I have a 12 month contract @ $110 per month with a yard man. In December he only came once when he is supposed to come twice per the contract. In January, since money has been tight and he has not been doing as stated, I told him that I no longer need his services. Now he is threatening to take me to small claims for 4 months left on the contract ($440) unless I pay for January ($110) + a late fee ($25) + a contract cancellation fee ($50). Does he have a case? How can I prove he did not come and how can he prove that he did? Would it be best to just pay the cancellation fee?

Asked on February 1, 2011 under Business Law, Florida

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Ok.  Does the contract have any language in it as to a breach of the agreement and what will happen?  Generally speaking if a party breaches a contract, the contract could be rendered voidable but not necessarily void.  That means that you could have the option of breaking it.  So you seem to want to go that route. Send him a letter by certified mail that states something like the following: "pursuant to our agreement dated whatever, services were to be rendered twice monthly for the sum of $110.  You have failed to provide services as agreed to in the aforementioned contract, consituting a breach of the contract and rendering it void."  Here, though, lies the problem:  did he come twice in January?  Then you may be seen to have reinstated the contract and forgiven the December breach.  What I would do is try and negotiate the January payment and cancellation policy based on December.  Good luck. 


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