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Old 10.09.2020, 01:46
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Can I get a Betreibung from a phone-call 'agreement'?

[sorry for a silly question from a newbie]


Story: I was contacting a tutor I found online, and we had an 'initial' phone call to make plan for our lessons, that we will meet on day xx at time yy each week. He mentioned that normally students would pay for 10 lessons each time. I said aha. (but he didn't mention about our rate. This information was in our earlier email exchange). Then, later I realized I'm not free anymore, apologized, and said it was a nice talk. The tutor replied angrily that it was not 'just a nice talk' but it was 'already an agreement'.


I am confused. Is it already a legally binding agreement? Could this person pursue me for Betreibung?
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Old 10.09.2020, 01:55
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Re: Can I get a Betreibung from a phone-call 'agreement'?

Of course, anyone can file a Betreibung against anyone else in Switzerland. They don't even ask for the reasons.

But if you dispute it, he will have to prove his side of the story or it won't go any further than a record on your Betreibungsregister. Which you can request to remove these days if he doesn't act on your dispute.


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I am confused. Is it already a legally binding agreement?
Verbal agreements are legally binding, but proving and enforcing them is a whole extra dimension to the case. Consider what material he has on you already, especially any written material - your email exchanges, and how they could be interpreted. Then decide whether he has a leg to stand on, that you had a deal sealed.
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Old 10.09.2020, 02:01
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Re: Can I get a Betreibung from a phone-call 'agreement'?

Thanks for your answer, spark. Also, is this actually considered a 'legally binding agreement'? I am confused. Even if we agree on the weekly plan and the start date, it is not like we specify validity period [i.e. continue classes until when]. If he is legally entitled to pursue me, wouldn't it imply that I'm eternally liable to him for this 'weekly agreement' that I didn't specify the ending date. It is not like I make an eternal oath to this tutor and must pay him every week for the agreed time ???
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Old 10.09.2020, 02:05
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Re: Can I get a Betreibung from a phone-call 'agreement'?

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Also, is this actually considered a 'legally binding agreement'?
Yes, though it may very well be unenforceable due to his inability to supply the proofs.

But consider all the email exchanges you had and especially your last replies to him - can they be interpreted to suggest that you actually did agree to the deal and you're now pulling out? Be very careful with what you reply to him next


Quote:
Even if we agree on the weekly plan and the start date, it is not like we specify validity period [i.e. continue classes until when]. If he is legally entitled to pursue me, wouldn't it imply that I'm eternally liable to him for this 'weekly agreement' that I didn't specify the ending date. It is not like I make an eternal oath to this tutor and must pay him every week for the agreed time ???
Depends. If your contract can be qualified as an Auftrag (good chance but not 100% sure), you have a statutory right to cancel it at any time


https://www.admin.ch/opc/de/classifi...ndex.html#a404

Last edited by spark; 10.09.2020 at 02:16.
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Old 10.09.2020, 02:37
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Re: Can I get a Betreibung from a phone-call 'agreement'?

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Thanks for your answer, spark. Also, is this actually considered a 'legally binding agreement'? ?
A legally binding agreement is any corresponding and mutual declarations of intent between two or more parties. Such declarations can be made verbally, written, or by conclusive actions.

As long as there is no corresponding agreement about the major terms there is no contract. Minor or so called secondary terms can be left out and negotiated later.

If you want to claim that there was no agreement than the best you could do is the missing and unknown price. Question is, is the price a minor or major term of the contract.

Write the tutor back the there is no agreement or contract as the major terms such as the price per lesson have never been negotiated or disclosed. Accordingly there there is no mutual agreement and hence no binding contract. Art. 1 Abs. 1 and Art. 2 Abs. 1 Code of Obligations.

Be aware that you are the asshole in that situation and you only get out because of a technicality.
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Old 10.09.2020, 02:42
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Re: Can I get a Betreibung from a phone-call 'agreement'?

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If your contract can be qualified as an Auftrag (good chance but not 100% sure), you have a statutory right to cancel it at any time


https://www.admin.ch/opc/en/classifi...ndex.html#a404
Art. 404 Cod of Obligations (above link fixed to English version, just replace the /de/ part with /en/) has the clause that if an untimely cancellation leads to damages they must be reimbursed. For example if there was already a fix schedule/booking and the spot can not be filled with an other student.
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Old 10.09.2020, 09:32
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Re: Can I get a Betreibung from a phone-call 'agreement'?

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I was contacting a tutor I found online, and we had an 'initial' phone call to make plan for our lessons, that we will meet on day xx at time yy each week. He mentioned that normally students would pay for 10 lessons each time. I said aha. (but he didn't mention about our rate. This information was in our earlier email exchange).
The fact that there was no rate agreed indicates to me that a contract has not been established - at least for the supply of lessons. However, you may have formed a contract along these lines:

The contract creating an obligation for one or both of the parties to conclude a contract in the future (Vorvertrag/précontrat, promesse de contracter; Art.22); From here.


You may have agreed you were going to form a contract, and in Swiss law that's a contract in itself. You didn't agree to pay for ten lessons in advance, so he can whistle for that, but you may be liable to pay some compensation for the breach. Perhaps one lesson's fee would be reasonable?

The amounts involved can't be that high, so it seems unlikely to me that the tutor would pursue the matter further even if you pay nothing.

My daughters tutor. They reserve the right to charge for any lesson cancelled within 24 hours of the lesson. This is standard practice - normal and reasonable. (And yes, it's backed up by Art 404).
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Old 10.09.2020, 11:03
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Re: Can I get a Betreibung from a phone-call 'agreement'?

Thanks for everyone's information. I actually want to pay him a compensation, but how much should it go? Actually, he mentioned how usual students pay for 10/20/30 blocks, and I thought he just said it "FYI", so I just acknowledged what he said as aha. Then he talked about something else.
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Old 10.09.2020, 13:05
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Re: Can I get a Betreibung from a phone-call 'agreement'?

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Thanks for everyone's information. I actually want to pay him a compensation, but how much should it go? Actually, he mentioned how usual students pay for 10/20/30 blocks, and I thought he just said it "FYI", so I just acknowledged what he said as aha. Then he talked about something else.
if this call has not been recorded it is your word against his, which means nothing will come out of this.
if the call has been recorded by him, he is in for a talk with the police.
I don't see why would you pay him anything.
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Old 10.09.2020, 16:40
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Re: Can I get a Betreibung from a phone-call 'agreement'?

Thank you all for the help and suggestions.

Now, the tutor argued that the offer, including the price per lesson, was already written in the first email he sent to me. The tutor claimed that during the video call, he asked me if the price mentioned in the first email was fine and that I replied "yes".

I honestly don't recall hearing any question or confirmation regarding the price per lesson at all, let alone replying "yes" to such a question. I think I said "aha" or "yes" a lot to show that I was listening. The closest question is probably about the "FYI" that typically students pay for lessons in 10x block.

Should I continue to respond to him?

Last edited by danilins; 10.09.2020 at 17:02.
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Old 10.09.2020, 16:49
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Re: Can I get a Betreibung from a phone-call 'agreement'?

How much notice did you give before the first lesson was agreed to start? Or was there no agreement even for that?
I'd apologise sincerely and leave it at that. If he sends you a bill you can start to negotiate then.
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Old 10.09.2020, 16:52
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Re: Can I get a Betreibung from a phone-call 'agreement'?

We called yesterday and agreed to start next week on Tuesday. Then, two hours later, I called it off.


Should I make an 'open' offer asking if and how much he wants for a compensation (just to prevent a potential problem in the future)?
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Old 10.09.2020, 16:52
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Re: Can I get a Betreibung from a phone-call 'agreement'?

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we had an 'initial' phone call to make plan for our lessons, that we will meet on day xx at time yy each week.

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he didn't mention about our rate. This information was in our earlier email exchange


You were first informed about the price and then made a plan for your lessons. Sounds like an agreement to me.
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Old 10.09.2020, 16:57
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Re: Can I get a Betreibung from a phone-call 'agreement'?

Thank you for your answer. In case it is an agreement, how much money am I expected to owe him now? I actually don't mind paying. The thing I wonder is how to calculate the owe amount given that we didn't specify how many lessons to take, as the only things we perhaps agree are 1. the price per lesson, and 2. the number of lessons per week.
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Old 10.09.2020, 17:00
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Re: Can I get a Betreibung from a phone-call 'agreement'?

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Thank you all for the help and suggestions.

Now, the tutor argued that the offer, including the price per lesson, was already written in the first email he sent to me. The tutor claimed that during the video call, he asked me if the price mentioned in the first email was fine and that I replied "yes".

I honestly don't recall hearing any question or confirmation regarding the price per lesson at all, let alone replying "yes" to such a question. The closest question is probably about the "FYI" that typically students pay for lessons in 10x block.

Should I continue to respond to him?
If you did not signal intent to agree with anything and were only asking for information then I would specifically tell him, preferably in writing, that you did NOT agree to anything, will NOT pay him anything. If he genuinely thinks otherwise (which I doubt), then he needs to prove this beyond any reasonable doubt.

This is common bully-boy tactics with low-rent teachers who need quick cash injections from easily intimidated expats who hear the word "Betreibung" and panic. By paying him anything you are only facilitating this scummy behaviour.
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Old 10.09.2020, 17:06
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Re: Can I get a Betreibung from a phone-call 'agreement'?

Thank you for your response, Chuff. Would you advise me to further engage with him (e.g. responding to him that I did not agree to anything, etc.)?
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Old 10.09.2020, 17:07
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Re: Can I get a Betreibung from a phone-call 'agreement'?

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We called yesterday and agreed to start next week on Tuesday.
Look like you had indeed an agreement. And as you were aware about the usual charges the price has been set as well. Always good when such important details are only mentioned later. It is really not like it will give a completely different picture of the situation-

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Then, two hours later, I called it off.
In general a contract, once it is made, is binding for both sides. There is usually no cool off period. On one hand the tutor is right, on the other two hours is a very short period.
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Old 10.09.2020, 17:09
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Re: Can I get a Betreibung from a phone-call 'agreement'?

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We called yesterday and agreed to start next week on Tuesday. Then, two hours later, I called it off.
That's ridiculous. He's not incurred any costs, and not being inconvienced in any way. Does he not understand the concept of goodwill? No - he wants to screw his client for the money. If this happened to any of the tutors I know, they'd just shake their heads and get on with life. Sounds to me like you dodged the bullet there.

aSwissInTheUS is right that possibly a contract has been formed and you're in breach. But law is a tricky thing - open and shut cases often turn out to be rather muddier than at first sight. You never know how a judge is going to react - but over such a trifiling amount (700CHF ten lessons?), a judge would probably be really pissed off that it came before him (or her).

If he's really behaved as badly as he sounds - over peanuts in the scheme of things - I'd not feel inclined to give him a rappen. I would not engage further. If he bills you for ten lesson, then pay for one as "full and final payment", just to make him go away.
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Old 10.09.2020, 17:09
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Re: Can I get a Betreibung from a phone-call 'agreement'?

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Thank you for your response, Chuff. Would you advise me to further engage with him (e.g. responding to him that I did not agree to anything, etc.)?
Respond to him formally, drafting a VERY clear response telling him that:
  1. As far as you were aware it was a purely informational meeting and you did not definitively agree to anything as you had not yet seen any rates to agree to.
  2. You did not have intent to confirm your commitment to an offer until you had seen all of the information, including rates.

Send it to him by post with your statement and a signature if you have to as that is considered the most formal way of doing things in CH.

It really sounds like he is trying it on and I have seen similar stories many times over the years.

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We called yesterday and agreed to start next week on Tuesday. Then, two hours later, I called it off.


Should I make an 'open' offer asking if and how much he wants for a compensation (just to prevent a potential problem in the future)?
Ok crap I missed this post. However, if it was only o a call then he has to prove it and only has the email as evidence. If you cancelled a mere 2 hours later and he is still trying to screw you then I would not give him a penny.
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Old 10.09.2020, 17:10
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Re: Can I get a Betreibung from a phone-call 'agreement'?

Thanks for your answer aSwissInTheUS. Yes, I totally accept that there is no cool-off period. I just mentioned the two hours as a timeline reference of what happened in that day. At this point, I only want to know the amount of money that I am liable.
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