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Paul
03-19-2012, 03:59 AM
couldnt find this in my search.

to me exclusives are nonsense really, i see no logic of any kind surrounding them.


But i am wondering this.

If X asks for a full and states they 'prefer exclusives' and i submit and dont actually state my agreement to an exclusive, and this is then interpreted as an agreement to exclusivity, is this in any way legally binding?


I can't imagine it is, but more experienced commentators might know.

So in short, are exclusives, agreed or otherwise, legally binding?

Paul
03-19-2012, 04:38 AM
I know exclusive have been written on, but the legally binding bit?

yes, i understand the honour argument an all that, but if this ever does come up, i want to be sure i know what i'm letting myself in for.

quicklime
03-19-2012, 05:03 AM
it isn't legally binding any more than the general code that you don't bang your best friend's wife, I suppose.....

the analogy isn't bad, either....."agents" is a small pool--if you fuck one friend's wife, how do the rest view you? Would you acquire a name for yourself and unwanted reputation? If you were another guy, with an attractive wife, how would YOU feel about engaging in any sort of relationship with "that guy"?

i think you can break an exclusive agreement, but doing so carries risk.

Paul
03-19-2012, 05:11 AM
thanks quicklime.

for me, if they are not legally binding, and i doubt it, then they are really pretty silly.

i do have to laugh at the whole 'court us with love, after all, we are human'.

yes, agents are human, most definitely, but they're also strangers.

going by your analogy quicklime, it's akin to a one night stand accusing you of unfaithfulness.

now, if i was engaged to be hitched....that's a whole other ball game.

(marriage of course being both morally and legally binding!)

eta: Enjoying this analogy you offered ql, so here goes.

sending out queries is akin to being in a bar/ nightclub - you may know some a little, you might not.

Your query is your chat up line, it can be good, bad etc. If they are 'in the mood' even a bad chat up might get you a date, but a very good chat up technique probably will.

so you have a date (the partial) afterwards it's a bye forever or hmmm, i'd like to see you again, you cutie you. BUT WE RE NOW DATING EXCLUSIVELY!!!


Imagine that. Sound reasonable?

I dont think so.


Of course, after a few dates, (emails, discussions) attachment grows - well then exclusivity may well be an option, even if no engagement ring is purchased.


but after ONE DATE???


no way, Rosey. :D

Drachen Jager
03-19-2012, 05:19 AM
You never have to agree to an exclusive. The only times I've ever had an agent request exclusivity I've had several other copies out. Each time I mentioned that, told them I'd keep them up to speed if the status changed on the others and I would not submit new material until the exclusive period had expired (two weeks was the most I ever agreed to).

None of them ever had a problem with it, and every time the one requesting the exclusive got back to me faster than the others did anyhow.

Giant Baby
03-19-2012, 05:19 AM
If X asks for a full and states they 'prefer exclusives' and i submit and dont actually state my agreement to an exclusive, and this is then interpreted as an agreement to exclusivity, is this in any way legally binding?


If they "prefer" an exclusive read, but you don't grant it, then no, they don't have an exclusive read. If they then send something back stating that they assume an exclusive read unless you responded in the negative, I don't think that's anything but obnoxious. I would, nonetheless, respond, with an honest answer that the exclusive was not agreed to and therefore not granted, but that you look forward to their response to your material.


I know exclusive have been written on, but the legally binding bit?

Legally binding, how? What did you sign? It's not a contract, it's an offer to let them read your book.

All this said, I recommend that you read their submission guidelines and not be a dick about them. If you know what they want, and you don't want to grant it, then don't go there. Agents with particularly stringent guidelines know that they're thinning out their submissions pools in certain ways, so leave them to their remaining pools. They usually have their reasons.

Sage
03-19-2012, 05:21 AM
Ah, but the exclusivity comes in at the full stage, not the query stage. In your analogy, wouldn't the query by the one night stand, and the full be the part where you're dating before you (maybe) get hitched? And when the agent asks for exclusivity, isn't it like a girlfriend doing the same? If you continue dating after this request, she has every right to be pissed when you date someone else.

/devil's advocate

quicklime
03-19-2012, 05:22 AM
thanks quicklime.

for me, if they are not legally binding, and i doubt it, then they are really pretty silly.

i do have to laugh at the whole 'court us with love, after all, we are human'.

yes, agents are human, most definitely, but they're also strangers.

going by your analogy quicklime, it's akin to a one night stand accusing you of unfaithfulness.

now, if i was engaged to be hitched....that's a whole other ball game.

(marriage of course being both morally and legally binding!)

AND the guy who routinely schmoozes his way through last call quickly develops a reputation.

if you wish to avoid an exclusive, don't agree to one. agree and lie, and you will effectively be pissing in your own drinking well.

Paul
03-19-2012, 05:30 AM
Ah, but the exclusivity comes in at the full stage, not the query stage. In your analogy, wouldn't the query by the one night stand, and the full be the part where you're dating before you (maybe) get hitched? And when the agent asks for exclusivity, isn't it like a girlfriend doing the same? If you continue dating after this request, she has every right to be pissed when you date someone else.

/devil's advocate
very good. i added to me previous response above . to me, the partial is only one date, and unless that was astonishing, exclusivity afterwards would be nuts. (astonishing in this case being an effusive response stating an immediate read type of thing)


to GB, yes ,but what if the exclusivity bit aint mentioned 'til after the partial?

Paul
03-19-2012, 05:33 AM
AND the guy who routinely schmoozes his way through last call quickly develops a reputation.

if you wish to avoid an exclusive, don't agree to one. agree and lie, and you will effectively be pissing in your own drinking well.
well i'm not a Don Juan is the dating game or the submissions game. i'm talking about the one off.

Sheesh, just how handsome you think my writing is? ;)

Polenth
03-19-2012, 06:02 AM
It's not about whether it's legally binding, but about honesty. If an agent finds out you lied to them, it's likely they won't want you as a client.

So if someone asks for an exclusive and you can't give them one, it's best to say that. Don't tell five agents they all have an exclusive when they don't. (Though if they don't ask for an exclusive, it's not something you have to worry about... they didn't ask and you didn't agree, so they don't have one.)

Paul
03-19-2012, 06:08 AM
It's not about whether it's legally binding, but about honesty. If an agent finds out you lied to them, it's likely they won't want you as a client.

So if someone asks for an exclusive and you can't give them one, it's best to say that. Don't tell five agents they all have an exclusive when they don't. (Though if they don't ask for an exclusive, it's not something you have to worry about... they didn't ask and you didn't agree, so they don't have one.)
thanks Polenth.

I do fully understand that principle, which others have hit upon and it's one which I would fully subscribe to (the 'no can do' response). but was wondering about an unusual but not impossible event.

but really, to me, if exclusives are not legally binding they are a disservice to writers and agents. they ask for loyalty where no relationship actually exists. (see above for witty analogy)


now, buy me a few drinks, some hand-made chocolate, a movie or two, well...

quicklime
03-19-2012, 07:48 AM
thanks Polenth.

I do fully understand that principle, which others have hit upon and it's one which I would fully subscribe to (the 'no can do' response). but was wondering about an unusual but not impossible event.

but really, to me, if exclusives are not legally binding they are a disservice to writers and agents. they ask for loyalty where no relationship actually exists. (see above for witty analogy)


now, buy me a few drinks, some hand-made chocolate, a movie or two, well...


as opposed to a contractor, where it is considered excellent business practice to promise to work for a single client while moonlighting, or any of a thousand other business scenarios...

I get not liking some aspects of, well, all jobs, but as far as "unique", I'm thinking that's bullshit--there are lots of places people ask for exclusivity on little more than a handshake, and you either do or don't. In all of them, you have a choice, and in all of them, saying one thing and doing another is a poison pill.

Al Stevens
03-19-2012, 08:19 AM
If you agree to something, you've given your word. Keep your word. If you want out, ask.

Old Hack
03-19-2012, 11:45 AM
Agents ask for exclusivity because reading a full ms is time-consuming, and they don't want to invest that time into a ms without some sort of guarantee that they'll be able to benefit from it at the end. If many agents are reading the same ms, then there's a chance the author will receive an offer on the book before they've finished reading it.

If writers don't want to agree to an exclusive then they only have to say so. Some agents will read even when denied an exclusive; others won't. But for writers to agree to an exclusive and then send the work out elsewhere? That's sneaky, unprofessional behaviour which might well come back and bite you later.

Paul
03-19-2012, 03:38 PM
Agents ask for exclusivity because reading a full ms is time-consuming, and they don't want to invest that time into a ms without some sort of guarantee that they'll be able to benefit from it at the end. If many agents are reading the same ms, then there's a chance the author will receive an offer on the book before they've finished reading it.

If writers don't want to agree to an exclusive then they only have to say so. Some agents will read even when denied an exclusive; others won't. But for writers to agree to an exclusive and then send the work out elsewhere? That's sneaky, unprofessional behaviour which might well come back and bite you later.
for sure. whatever you agree to, stick to. no one is saying otherwise, certainly not me.

so in relation to the OP, I'm assuming that exclusives are not legal and that even if a agent infers agreement without agreement given, it is their decision and it is not a legally binding one. Good.


to QL, not sure who mentioned 'unique', but my question is in relation to writers and agents, on this, a writers forum.

so em, that's that then. :)

ETA: I'm just wondering, judging by some of the replies if my OP is clear enough.

Basically I'm asking if an agency infers an implicit agreement to exclusivity by the process of submission, do they had a legal standing? (and folks i have seen some crazy statements out there)

Probably a silly question, in that a binding contract must have two or more parties explicitly indicate their agreement (by statement and signature). But i wanted to be sure. Now if an agency made such an inference normally my reaction would be 'so what?' - but what if there was a legal issue - hence my question - is there a legally binding element to exclusivity where a reading is concerned (of a full)


I most certainly did not ask "is is ok to blow off an mutually agreed exclusivity agreement with an agency''. didn't even infer that.

Old Hack
03-19-2012, 04:43 PM
Paul, why are you so concerned about whether this is a legally binding agreement or not?

Paul
03-19-2012, 04:48 PM
Paul, why are you so concerned about whether this is a legally binding agreement or not?
Well, from a moral point of view i might think 'that's their misconception, I agreed to nothing, an action of submission does not equate to an agreement to exclusivity, I shall continue to submit elsewhere',
but if there is a legal issue, ie, you legally can not submit elsewhere, well isn't that a whole other kettle of fish?

ie, being sued. (and therefore not likely to submit elsewhere, ie, trapped.)

Buffysquirrel
03-19-2012, 05:01 PM
You have to look at it as a contract between you and the agent.

NB: IANAL.

The question then becomes whether the contract is binding. Contracts iirc require six elements to be valid.

You ask, if I don't actually state my agreement to the exclusive, is it still in operation? This becomes a question of True Consent. The agent has asked to read your full ms and indicated that they wish to do so exclusively. You then send them the ms. In your cover letter, you do not agree to exclusivity, but nor do you specifically exclude it. Is that therefore consent to exclusivity?

I would argue, yes, it is consent. In sending the full ms, you have agreed to the agent's expressed requirements. It's no different from when a mail order company says, we'll sell you this product under these terms and conditions, and you send in your order. The terms and conditions apply.

A more interesting question would be to do with consideration.

However, even if we established that you had a legally enforceable contract with the agent, it's unlikely they'd take you to court if they found out you'd breached it. More likely they'd just talk about what you did to all their agenty and editory friends. Is that what you want?

robjvargas
03-19-2012, 05:06 PM
I'm not sure where I stand on this. At the query level, that's easy. No.

But if it gets to the level of a full MS... I would remind the agent that I have several queries out, and set a deadline. Two weeks, six weeks, depends how much it matters.

I agree with Polenth. Legal status isn't the issue here. Reading a full manuscript is a significant investment in an agent's time. Even if they can't legally hold you to it, they can simply refuse to proceed. Providing *some* level of exclusivity just seems like professional courtesy.

Terie
03-19-2012, 05:11 PM
I can hardly see an agent bothering to sue someone in these circumstances. After all, even if the author signed with another agent who went on to make a mega-deal, there's no way to prove the first agent would've been able to make the same deal. I mean, in all practicality, what's there to sue over?

The damage to one's reputation in the tiny world of publishing would probably be much greater than the damage to one's pocketbook.

Paul
03-19-2012, 05:12 PM
You have to look at it as a contract between you and the agent.

NB: IANAL.

The question then becomes whether the contract is binding. Contracts iirc require six elements to be valid.

You ask, if I don't actually state my agreement to the exclusive, is it still in operation? This becomes a question of True Consent. The agent has asked to read your full ms and indicated that they wish to do so exclusively. You then send them the ms. In your cover letter, you do not agree to exclusivity, but nor do you specifically exclude it. Is that therefore consent to exclusivity?

I would argue, yes, it is consent. In sending the full ms, you have agreed to the agent's expressed requirements. It's no different from when a mail order company says, we'll sell you this product under these terms and conditions, and you send in your order. The terms and conditions apply.

A more interesting question would be to do with consideration.

However, even if we established that you had a legally enforceable contract with the agent, it's unlikely they'd take you to court if they found out you'd breached it. More likely they'd just talk about what you did to all their agenty and editory friends. Is that what you want?
Great analysis. very interesting.

btw, i havent submitted, this is as yet hypothetical (based on info i received) but you may well be right there - it could be legal.

as for the tell other agents, that only would apply if they believed they had an exclusive, by action of submission - which is the crux of my question. so in fact, that might just be the case!

so, the moral here is, dont submit to agencies with implied exclusivity by the action of submission.

very very interesting. thanks again Buffy.


Again, for clarity, i am not talking about an explicitly agreed statement of exclusivity, but inferred exclusivity by act of submission according to agency policy.

I suppose inference from stated policy amounts to the same thing as explicit agreement.

Paul
03-19-2012, 05:15 PM
I can hardly see an agent bothering to sue someone in these circumstances. After all, even if the author signed with another agent who went on to make a mega-deal, there's no way to prove the first agent would've been able to make the same deal. I mean, in all practicality, what's there to sue over?

The damage to one's reputation in the tiny world of publishing would probably be much greater than the damage to one's pocketbook.
agreed - but no harm knowing the situation.

as for the reputation also agreed - if the understanding in the world of agents is that stated policy on submissions equals explicit agreement. which may well be the case.

Old Hack
03-19-2012, 05:19 PM
Well, from a moral point of view i might think 'that's their misconception, I agreed to nothing, an action of submission does not equate to an agreement to exclusivity, I shall continue to submit elsewhere',
but if there is a legal issue, ie, you legally can not submit elsewhere, well isn't that a whole other kettle of fish?

ie, being sued. (and therefore not likely to submit elsewhere, ie, trapped.)

If an agent wants an exclusive you are under no obligation to submit to them.

If you choose to submit, it's reasonable to follow their submission guidelines.

Few agents ask for an exclusive on queries: most only ask when they're reading fulls. Most will happily agree to a time-limit on that exclusive, and many will agree to read your work even if you can't give them the exclusive that they want.

If you're worried about being sued by an agent because you don't give them the exclusive they've asked for, then don't. Tell them that you can't or won't give them that exclusive and let them decide whether they're prepared to read your work under those circumstances.

Or allow them to believe that you have sent your work to them exclusively when you know you have not done so, waste their time, and be aware that they'll tell their agent and editor friends about your actions.

It's entirely your choice.

Paul
03-19-2012, 05:24 PM
thanks OH. I do recognise what you are saying.

i suppose i could have put my OP a lot simpler.

does agency submission policy on exclusivity equal explicit agreement to exclusivity.

I'm gonna go YES. Guess I'll leave it at that. Thanks to all for the replies.