Validity Of Contract In Modelling By Chidera Nwokeke – TheNigerialawyer

The term Modelling is not novel or alien to everyone because it
has grown to become a household name.  A model is a person
with a role either to promote, display or advertise commercial
products (notably fashion clothing in fashion shows)  or to
serve as a visual aid for people who are creating works of art or
to pose for photography.

A perusal of this topic will ascertain whether there is a valid
contract in modelling;  are the elements of a valid contract
there in modelling?  Types of modelling contract and the
remedies available for breach of modelling contract?

In the case of BEST (NIG)  LTD V B. H
(NIG)  LTD (2011)5 NWLR PT 1239 P. [email protected]^[1]–the
Supreme Court defined Contract to mean a legally binding agreement
between two or more persons by which rights are acquired by the
party in return for acts or forbearances on the part of the other.
In the basis of requirements of a valid Modelling contract, there
must be an offer, an unqualified acceptance of that offer and a
legal consideration for a contract to exist. Indeed, there must be
a mutuality of purpose and intention between the two contracting
parties.P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (Pt. 1055)
478 at 502.

Advertisement of form and invitation of models by Modelling
Agency to participate in a modelling contest is not an offer that
will lead to a contract.  It is merely an invitation to treat.
An invitation to treat is not an offer that can be accepted to lead
to an agreement or contract and therefore cannot form the basis of
any cause of action–BPS CONSTRUCTION & ENGINEERING
CO. LTD v. FCDA (2017) LPELR-SC.293/2011. The essence
of an invitation to treat is that by it the supposed offeror is
merely initiating a negotiation from which an agreement might or
might not in time result. The negotiation crystallizes into an
offer properly when one of the parties who thus becomes the offeror
finally assumes a definite and unshifting position of preparedness
to be bound if the other party accepts.

An offer in modelling is made when the model approaches the
Modelling agency to purchase the form for the contest or indicate
interest to participate in the modelling role they advertised
for.  This offer from the models must be unequivocal, precise
and in tandem with the advertisement made. The offer can be
communicated orally or in writing. For an offer to be valid, it
must be precise and unequivocal, giving no room for speculation or
conjuncture as to its real contend in the mind of the offeree.
 The offer may be verbal, written or even implied from the
conduct of the offeror. The offeree has the option of acceptance or
outright rejection of the offer. RABILU v. USMAN (2016)
LPELR-CA/K/268/2009. An offer is the commencement of
a contract. Where there is no valid offer, no other ingredient of a
contract can be built on it–OGUNNIYI v. HON. MINISTER
OF FCT & ANOR (2014) LPELR-CA/A/320/2009. “…when
an offer is made, it must be accepted first before a contractual
agreement can come into being –

An acceptance must be without equivocation, qualification or
addition to the terms of the offer.  Acceptance of an offer
must be communicated either by the offeree himself or by his duly
authorized agent. In the case of THE FEDERAL GOVERNMENT
OF NIGERIA & ORS. V. ZEBRA ENERGY LTD (2002)
LPELR-SC.268/2001–Acceptance of an offer may be
demonstrated by the conduct of the parties as well as by their
words or by documents that have passed between them.

A modelling agency or a model can reject an offer and once this
is done,  it puts an end to an offer and makes it incapable of
acceptance. It can be by a direct intentional refusal or by a
counter offer.  Also, if an offer is stated to be open for a
fixed time for the models or modelling agency,  it clearly
cannot be accepted after that time has expired. Then,  if no
time is stated in the offer, then the offer lapses after a
reasonable time.

Consideration is an essential element in the formation of
modelling contract.  The consideration is furnished by the
party making the contract,  it can be the modelling agency to
the model or the model to the modelling agency or even a company to
a modelling agency.  Consideration must be sufficient but need
not be adequate,  since it is a price,  it must be
something real and in most cases cash as observed in modelling.
Consideration must move from the promisee but not necessarily to
the promisor. The person to whom a promise was made can only
enforce that promise if he himself provided the consideration for
it.  He cannot sue if the consideration for the promise moved
from a third party.

Contractual capacity of parties in modelling Contract is
essential, absence of contractual capacity makes the contract not
to have any validity in law.  Apart from defects strictly
speaking,  a modelling contract may not be enforceable against
certain categories of people who enjoy special status in
contractual transactions.  This privilege is intended as
protection for people who because of their circumstances, can
easily be exploited or defrauded in the making of contracts. 
This protected group includes infants,  persons of unsound
mind or lunatics,  drunken persons and illiterates.

It is pertinent to note that in a modelling contracts, 
there must be an intention to create legal relations.  The
only form of agreement which gives rise to contractual obligation
is one which is made in such a way or in circumstances which
justify a conclusion that a commitment has been made. Even where
valuable consideration is present, an agreement will not become a
binding contract unless it is intended by the parties to it that it
would give rise to legal relations.  An intention to create
legal relations in modelling can be expressly stated or
implied.  Where it is not expressly stated,  the test to
discover whether it exist is that of a reasonable man.

There are several types of models which include but not limited
to Runway models showcase clothes from fashion designers, fashion
media, and consumers. They are also called “live models” and are
self-employed. Fitness modelling focuses on displaying a healthy,
toned physique. Fitness models usually have defined muscle groups.
Plus-size models are models who generally have larger measurements
than editorial fashion models. The primary use of plus-size models
is to appear in advertising and runway shows for plus-size labels.
Also there is Fashion modelling. How Long a Modeling Contracts Last
depends on the type of contract, but usually, it’s anywhere from
one to five years. It’s also important to note that modelling
contracts don’t magically end on their expiry date. Usually, they
automatically renew unless the model provide the agency with the
proper termination notice usually 30 – 60 days written notice.

A modeling agency is a company that represents fashion models ,
to work for the fashion industry. These agencies earn their income
via commission, usually from the deal they make with the model
and/or the head agency.

Types of Modelling Contracts includes:

Modelling contracts are what bind an individual person in the
modelling industry to a client or company and this comes with the
usual terms and conditions necessary to remain under the
contractual agreement.  There are different types of contracts
and obligations based on these agreements between parties. 
There are four types of modelling contracts that a person may sign
with:

Mother Agency Contracts

A mother agency (or mother agent) is the one you first begin
working with. They’re the agency that helps you learn the industry
and build your portfolio, and that gives you the guidance you need
to succeed as a model. Mother agencies are often smaller, local
modeling agencies. This happens to be the most popular of all
modelling contract because it is mainly for novice and amateur
models.

Nonexclusive Contracts

A nonexclusive contract gives models the power to sign with as
many agencies as they want and possibly find their own non-agency
side jobs. This is more common for commercial models than the high
fashion or editorial models. You might not get as many
opportunities or as much guidance with an nonexclusive agency as
you would with an exclusive one, but this type of contract does
offer models a lot of freedom. If the modeling agency finds you
work then they get paid a commission. And if you find work on your
own, you owe them nothing.

Exclusive Contracts

When you sign an exclusive contract with a modelling agency, you
can only be represented by that agency for the duration of the
contract. Sometimes there are exceptions—the term “exclusive” may
be limited by time, geography, or type of modeling—but if you’re
working with a top agency like Ford or Wilhelmina Models, then it
means you can’t sign with anyone else without their permission.

This type of contract gives a lot of power to the modeling
agency, so if you’re considering signing an exclusive contract it’s
even more important to make sure you’re working with a reputable
modeling agency that has your best interests at heart.

One-Time-Only Contracts

This type of contract is only good for a single booking. As soon
as the project is complete, the contract ends.

Remedies for Breach of  Modelling
Contract

Every breach of Modelling contract entitles the innocent party
to sue for damages.  In the case of OBAJIMI V
ADEDIJI (2007) ALL FWLR (PT 394) 335 @ 349 — A breach
of contract is committed when a party to the contract without
lawful excuse, fails, neglects or refuses to perform an obligation
he undertook in the contract or either perform an obligation or
incapacitates himself from performing the contract.

1. Damages: In the case of
   STEPHENSON STANDARD COMPANY LTD v. YIFA NIGERIA LTD
   (2012) LPELR-CA/L/297/2007- There are a number of
   remedies available for breach of modelling contract; the most
   common being the award of damages. Damages is the payment of
   compensation for non performance.An order for Damages presupposes
   the existence of a valid and subsisting contract to which the party
   wronged is entitled to pecuniary compensation.

The essence of damages in breach of a modelling contract case is
based in restitutio in integrum, that is the amount of damages to
be paid to the party wronged by the breach is the amount of damages
necessary to put the party wronged and aggrieved in the position he
would have been had there been no breach. When an action for
damages is brought upon for a breach of a modelling contract, 
two important questions are involved: The remoteness of damage and
measure of damages.

1. Specific Performance : In the case of
   TOYOTA (NIG) LTD V. MICHELIN (NIG) LTD & ORS (2018)
   LPELR-CA/PH/584/2013– The law is trite that the
   remedy of specific performance is the execution of a contract
   according to its terms. An Order of specific performance is an
   equitable remedy granted to a successful litigant constraining the
   losing party to carry out or fulfill his own part of the agreement
   which he had entered into with the successful litigant like all
   equitable remedies, it is at the discretion of the Court but the
   discretion must be exercised judicially according to settled rules
   and principles…To bring an action for specific performance for
   modelling contract presupposes the existence of valid and
   subsisting contract and therefore the insistence that it should be
   performed. An Order of specific performance will not be granted
   where a remedy in damages is adequate.
2. Rescission: The right of rescission
   is an equitable and it is also available in modelling Contract in a
   number of circumstances. Rescission is available to a party injured
   by breach of a vital or fundamental stipulation in contract, e.g.
   condition.  Rescission is also available to a party induced to
   enter into a modelling contract by the misrepresentation of the
   other party.  Rescission is available where a modelling
   contract is vitiated by mistake, fraud,  undue influence or
   any other invalidating factor.

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 FG to Govs: Implement Financial Autonomy to State
Assemblies, Judiciary

Honourable Attorney- General of the Federation and Minister of
Justice Abubakar Malami (SAN) has charged the states to undertake
the initiative to implement financial autonomy for state
legislature and judiciary as provided by the Nigerian
Constitution.

He gave the charge in his welcome address at a two-day retreat
on Strategies and Modalities for the Implementation of Financial
Autonomy of the State Legislature and State Judiciary organized by
the Presidential Implementation Committee on Autonomy of the State
Legislature and State Judiciary, on Thursday, May 16th, 2019 in
Abuja

Malami, the Chairman of the Committee was represented by the
Senior Special Assistant to the President on National Assembly
Matters/Secretary of the Committee, Senator Ita Enang.

According to him, ‘’the report and recommendation of the retreat
will be submitted to President Muhammadu Buhari, GCFR and
implementation at the State level will start immediately in the
next one-week after the resolution of the retreat”.

He explained that the outcome of the reform will enable the
judiciary to deliver judgment without fear or favor. The allocation
due to the Judiciary would be paid to the Judiciary account
directly while that of the legislature would also be paid to
legislature account directly.

He commended the large turnout of participants at the Conference
noting that 34 Chief Judges, 31 Speakers were physically present
while others were represented.

Deputy Senate President Prof. Ike Ekweremadu, said although the
State Assembly rejected financial Autonomy for themselves in 2010
even when they put it on NASS and INEC, adding that it is an
acronym that State Legislature has accepted their financial
autonomy same for the judiciary.

He noted that as a successfully plan put arms on First-Line
charges to the Consultative fund of the State; he is of the belief
that the facts have been strengthened to better execute their
Constitutional mandates without fear or favor.

Ekweremadu explained that the whole essence of Constitutional
efforts by the National Assembly (NASS) has always been to
strengthen the Institutions of Democracy, promote good governance
and hasten National Development.

‘’Every arm of government needs adequate autonomy to deliver its
Constitutional responsibilities, sadly the Local Governments joint
accounts was rejected by the State Houses of Assembly. Also, the
bill to strengthen L.G Administration as a tier of government by
preventing recognition at any L.G Council not democratically
elected preventing such unelected LG Council receiving allocation
from Federation Account ‘said Deputy Senate President.

Speaker, National Assembly Rt Hon.Yakubu Dogara in his good-will
message, noted that the alteration act of 2017 did not introduce
the concept of the first line charge to the judiciary as it already
existed in the constitution, it only introduced the financial
autonomy for state, legislature by merely substituting the
provision with the new provision by adding State House of
Assembly.

Dogara further added that for a robust and sound democracy,
Nigeria must reverse to the old Separation of Power, where there is
a full independence of the arms of government.

He advised that the Legislature and the Judiciary should not
work for the Executive but work with the Executive, adding that
without the independence of the judiciary and legislature,
democracy will be truncated.

Chairman Nigerian’s Governors Forum, Abdullaziz Yerima,
represented by Executive Governor of Bauchi State, Mohammed
Abubakar, in his goodwill message said the State Government are
collectively committed to the enthronement of a strong and vibrant
democracy in Nigeria and will work with Federal Government to
achieve the National Implementation Strategy and ultimately ensure
autonomy of the legislature and judiciary at the National
level.

In his vote of thanks, Solicitor-General of the Federation and
Permanent Secretary Dayo Apata said the Committee was inaugurated
by President Muhammadu Buhari on 22nd March, 2019 with three
months’ timeline to submit its report.

“Today, we are here to make a presentation after the President
came up with the initiative for the Committee to come up with this
kind of intervention”, he explained.

He stated that the intervention is essential for the physical
federalism of Nigeria and how it relates to the financial autonomy
of the state, legislature and the judiciary.

Dayo Apata thanked participants, adding that the large turnout
of attendance demonstrates their interest and passion in ensuring
that Nigeria is a better place as it relates to the physical
autonomy of the state, legislature, and the judiciary.

OGOCHUKWU IGBOAMALU

FOR: DD PRESS &PRU