Failure to Perform, Inadequate Performance

It often happens that an artist or an organiser fails to fulfil the contract and cancels the agreed performance. If, however, the contract does not allow such procedure explicitly, the artist or organiser is obliged to compensate the other party for the harm incurred.

In practice, a problem often arises when it comes to calculating the damage and proving its actual amount: endless discussions can be held, for example, as to whether the artist has saved some expenses as a result of the cancellation because he/she did not have to travel to the event, or whether he/she has lost the opportunity of getting an engagement for another theatre project (and whether he/she has thus lost a profit or not, etc.)

In order to prevent the above-mentioned complications and disputes, it is most advisable to agree on contractual penalties for a fundamental breach of the contract and/or on the cancellation policy, or compensation fees, in case the performance is cancelled by either party. These compensation fees are usually based on a graduated timeline: the shorter the notice given for the cancellation, the higher the fees.

On the other hand, performing artists should remember to have the obligation to perform excluded from the contract in the event of an illness. Most organisers demand that this provision only apply to an illness that objectively prevents the artist from performing duly and that the artist produce a sick note. If these conditions are met, the artist is not obliged to perform (but logically loses his/her entitlement to remuneration).

When negotiating the terms and conditions of a contract, a fundamental role is always played by how much the artist is able to assert himself of herself with regard to economic conditions and his/her professional level, all of which influences the artist’s negotiating position.