The opposite of "good faith"

Factual Questions
1

We hired someone to do something and she (arbitrary pronoun) failed to do it, despite representing being highly qualified. We entered the contract based, for the most part, on this representation. It may have been she misunderstood the task and was in over her head. It could have been she intentionally bilked us - took the money and ran.

What is certain is we entered the arrangement in good faith, and bad stuff happened.

That’s what I’m trying to say but in in a positive, professional, and accurate tone.

How do you positively describe this situation? Saying she “acted in bad faith” doesn’t seem justified.

If I can’t come up with something better, I’ll go with “she did not act in good faith” by I would prefer to remove the “not”. Considerations:
[ul]
[li] she mislead us (indicating intent to deceive I’m not sure is accurate)[/li][li] she strung us along (unprofessional, but accurate)[/li][li] she failed to act in good faith (“failed” instead of “not”)[/li][/ul]

Thoughts?

2

She falsely represented her abilities and knowledge.

3

Yes! Thank you!

4

It sounds like she failed to meet her contractual obligations. She may or may not have the ability and knowledge to do an acceptable job, but it sounds like that hasn’t been established yet.

5

The simple failure to meet the obligations is part of the overall document I’m writing. There are factors which point to inability. Without getting into details of the dispute itself, our argument includes a point that hinges on the representations made, and decisions we made based on those representations. (trying to settle amicably, but next step might be to hire a lawyer who certainly has canned phrases for all of the points we’re trying to make).

6

It sounds like you should describe the situation at hand rather than worrying about the phrasing of a nasty-gram you will be sending to him/her to let them know you are generally unhappy with their work. In my experience, you would be better suited to require specific quantifiable actions by specific dates in that letter and have clear consequences of not meeting those dates.

My guess is that this person came recommended by a friend of a friend who never actually used them or was helping out their (incompetent) family member. Having been there once myself, and having to sue the person in small claims court, I can totally sympathize. Hopefully the amount in question is less than $10,000 such that small claims is an option and you won’t require a lawyer.

In my experience, incompetent people (who always claim the problem is they are “so busy”) will never suddenly become competent because they are threatened. As such, before you resort to going to court, try to work out a settlement. Based on my own experience, my guess is that this person was supposed to remodel/fix/build something big, took a large down payment of money from you to pay for the materials needed up front, and then did only a fraction of the work after which they stopped coming. The claimed reason, assuming they answer their phone at all, is that they have “lots of other jobs and are in high demand”. In my case, I told the person to stop work immediately, and return all unused supplies to Home Depot to get a refund, or they could give them to me and I would get the refund, and we would settle up on as to the minimal labor and work performed. As you might guess, this was met with a lot of hesitation because the person had spent the money on other things and hadn’t bought any supplies for my job, thus the necessity of the small claims lawsuit. A lot of these folks are well meaning, but incompetent people who simply use your money to pay their rent or cover some other disaster in their life, and reason that if they can just book another job they will use that person’s money to pay for the supplies needed on your job, and no one will know the difference. But it never works out for them. I even had someone else finish the work before I went to court so I could establish what the actual labor value was for someone competent to do the remainder of the task to present in court. I informed the incompetent contractor I was doing this and I also let them know that I had looked up information about other lawsuits I found while at the courthouse where they were named in the past from other people who he had screwed (which I decided to look into on a hunch since I was at the courthouse anyway to file the small claims lawsuit).

In the long run, the guy waited until the day before the case to drag that out too, then begged me to dismiss it and gave me my money back. I only ended up being out the cost of filing with small claims and paying a process server to notify him he was being sued, which cost about $60 total, but saved me about $2,500. And yes, I made sure I got it in cash, because incompetent people also write checks that bounce.

7

Not even competent at this scam … there’s easy ways to hide this money and the typical homeowner wouldn’t have the where-with-all to track it down.

Many States have laws requiring all construction contractors to be licensed by the State. One of the requirements to get a license is for the contractor to have a current Performance Bond, and the bonding company has to be public information. In both the OP’s and Yarster’s situations, a call to the bonding company will bring an investigator out. If they confirm your side of the story, then they write you a check for the amount you’re out, and they’ll do the lawsuit thingie or just cancel the bond and put the contractor out of business.

Performance Bonds are not that expensive to begin with, and the cost of this Bond is spread out to all a contractor’s jobs in a given year. Insist upon it next home remodel … the real contractor should already have one.

8

Once you concede this possibility, you can’t say that she didn’t act in good faith.

9

Implying motive based on speculation is probably counterproductive and probably unnecessary. Stating the facts should be sufficient.

10

Bad faith to herself is still bad faith … the honest thing to do would be to give the money back if she can’t do the job … she may have entered the agreement in good faith, but she cannot fulfill her obligations … and the obligation of good faith is a continuing one under the terms of the contract are completed.

11

If she represented that she was qualified to do the job, and she wasn’t, you could say that she mispresented her qualifications or ability. To say that her misrepresentation was not made in good faith would be to say that, at the time she gave the representation, she knew it wasn’t true. I don’t think, from the OP, that you can say that.

Of course, if what she represented was that she had [this formal qualification] from [this educational institution] and [that many years of experience] in [that position] with [that employer] doing [those tasks], and the assessment that this was a sufficient qualification for the role you had in mind was yours, not hers, you can’t even accuse her of misrepresentation.

12

That’s my specification that she entered the agreement in good faith, she thought she could do the job. Turns out she can’t so now she has the good faith obligation to give the money back. She’s acting in bad faith by blowing off the customer until the customer gets sick of waiting and hires someone else. The misrepresentation came after the contract was agreed to.

13

This is very close to the situation. I didn’t intend, with the OP, to get into details. Of course, I’m not surrprised that Dopers’ curiosity couldn’t leave my vague threads unpulled :slight_smile:

…[details omitted]… sorry, I typed summary of the dispute along with the two complexifying factors that take this out of the realm of the home owner/contractor situation. I don’t feel comfortable getting into any further specifics on the off-chance this gets out and jeopardizes attempts to mend important relationships. I started the thread really to ask a wordsmith question. Once the dust settles I may start another thread to get into the details. It is an interesting, though very unfortunate, set of circumstances.

14

No, I don’t think she does, absent some unusual facts that you haven’t mentioned in your OP. When you hire somebody to perform services for you, you’re entitled to their best efforts, their loyalty, their diligence, etc. It’s not normally an express or implied term of the contract that they guarantee that their efforts, loyalty, diligence etc will have the outcome you want or hope for, or your money back, no quibbles! If you want to contract for that, you’d have to do so explicitly.

After all, the assessment that she could do the job was yours as well as hers. Assuming you both acted in good faith when the assessment was made, why should she rather than you bear all the risk associated with the possibility that the assessment turns out to be wrong? Ultimately you’re the employer here, you’re doing the hiring, you’re doing the managing. The risk that the hiring, mangement,etc decisions you make will not work out well for you is yours, not hers, and unless you can establish something like misrepresentation or breach of contract on her part I don’t see any case for saying that she has a “good faith” obligation to indemnify you.

15

In legal terms, I think the word you’re looking for is premeditation. This means that she knew at the time she discussed the job with you and signed the contract that she would not be able to hold up her end of the contract. But you’ve acknowledged (“It may have been she misunderstood the task and was in over her head”) that this may not have been the case. In which case you’re probably looking at failure to perform, which has the lesser standard of saying she didn’t fulfill the contract without getting into the issue of whether or not she thought she would at the time she made it.

16

I guess it depends on jurisdiction, here there exists the obligation to complete a contract. If she can’t then either give the money back or hire with the money someone to complete the job. The law is there to protect the homeowner, and it generally assumes the homeowner doesn’t understand the trades … thus the requirement for a performance bond.

Ah geez … your deadbeat sister-in-law ?!? This kind of bullshit is why you dumped her in the first place … yeah she snuck into your brother’s bed but you knew better than to hire her. Next time just giver her the money and don’t let her touch anything in your home.

17

I think the important principle here is to avoid any sort of speculation and focus on provable facts rather than speculating about motives. The relevant fact seems to be that she was hired to perform a task and failed to do so. That should be enough to make your case. I would leave judgments about good and bad faith out of it, except to say (if you felt it necessary) that you hired the person in good faith. I would also consider any comment about the person’s lack of knowledge or skills or her alleged misrepresentation thereof to be potentially speculative and unnecessary. Think in terms of small claims court or whatever your recourse is, and having to prove that everything you’ve said is true.

Except that that’s exactly what a task-specific contract is. Of course there are contracts where the outcome is uncertain, like when you hire a lawyer or a financial consultant, but the specified task there is not (usually) “win my case” or “make me rich”. The task is to provide competent professional services on a best-effort basis, which is precisely why such professionals are licensed and held to reasonably high standards. But when you hire someone, for example, to build a deck at the back of your house, there is no uncertainty in the matter and you have the full right to expect a properly built deck to appear, and if it doesn’t, you have no obligation to pay for something you didn’t receive. In fact, if you happened to have paid this person in advance with a credit card, you have the legitimate right on just this basis to ask the card issuer for a chargeback.

Obviously there are gray areas like the deck not turning out the way you wanted because the contract didn’t spell it out clearly enough, or the builder ran into unexpected difficulties and you end up arguing about whether he should have known and told you in advance, etc. But in general, “failed to fulfill the terms of the contract” is fairly clear-cut for most straightforward tasks.

18

With your help, I finished my document, including the wording I struggled with. Thank you!

The question in the OP has been asked and answered. One of the things that makes the SDMB great is the discussions that spin off of OPs. I love that, and am not surprised it happened here.

To help with the spin-off discussion, I will create a completely contrived example that is sorta/kinda like the situation we are in.

We hired a special insurance broker. They agreed to find the best fit for our special insurance needs. They know our requirements and they know insurance companies. Based on their unique position of knowledge, they provided a recommendation.

Yes it’s was our choice to accept/reject the recommendation. So maybe we do bear part of the risk. But we relied on the expertise of the broker to match our needs. We did this because we are not insurance experts - the broker is. That’s why we paid them. We accepted their recommendation.

This is a special broker - it is unlikely a broker like this actually exists. We pay them a fee to do the research and we also pay them a marked-up premium. From the premium we pay the broker, the broker pays the insurance company’s premium, and the broker keeps their cut.

So after the broker has paid the premiums for a while, we then submitted a claim - uncontroversially covered by the insurance policy. We only then discover the insurance company is unable to pay the claim. They represented as an accredited insurance company specializing in the area we require. But unspecified circumstances have occurred after the arrangement was struck which prevented the insurance company from being able to deliver on the promise on paying this legitimate claim.

Now here’s the thing: the insurance company’s billing cycle is shorter than the broker’s. In other words, the broker has already paid the premiums. The broker has paid the insurance company for four weeks’ worth of premiums. The broker then submitted to us an invoice at the end of the month for their marked up total. While getting ready to pay the monthly invoice to the broker, we discovered the problem with the insurance company’s inability to pay claims. The thing that we are about to pay for is effectively non-existent.

So the situation is: We entered the relationship with the broker to pay them to handle the selection of the insurance company and to pay the marked up premium. The broker entered into a relationship with the insurance company to pay their premiums. When we tried to make use of the services of the insurance company, they failed to deliver. We then received an invoice from the broker for premiums. But we know the insurance company is not going to provide the services we need. So why should we pay, knowing this?

Our agreement to pay the broker was made in good faith that they would provide us with a qualified insurance company that actually meets our needs. The broker’s agreement to use this insurance company was based on the insurance company’s representations that they do this kind of insurance and pay these kinds of claims. We paid the broker to validate these claims.

I don’t know why the insurance company is unable to deliver on their promise. Did they rated us incorrectly? Did they let their licenses or permits lapse? Did they lie about being an insurance company at all? We don’t know. We trusted the broker to vet and background check the insurance company. That’s what we paid them to do.

Our position is, now that it is obvious to all that we are not receiving the service we requested, we should not pay. The fact that the broker has already paid is not our problem - cold but true.

This is, again, a totally contrived example. We do not have a broker nor insurance. But the spirit of the dispute is fairly close to these circumstances.

The bulk of the document describes how we know the insurance company failed to deliver. The part of argument implicated by the OP focuses on the fact that we agreed to pay the marked up premium in good faith that both the broker did their job in background checking the insurance company, and that the insurance company was able to meet their obligations. Now that one or both of these assertions is evidently not true, our good faith is challenged, and our agreement to pay is cancelled.

19

If the insurer’s not on cover, they’ll refund the premiums. So you shouldn’t be asked to pay.

See, here’s the thing. Was it a term of your contract with your adviser that the adviser would unconditionally guarantee the continuing suitablity of the advice given, even in light of events occurring after they had done their research and provided their advice?

That would be a highly unusual contract term , so if you wanted it you’d have to make it explicit. Generally in a contract for professional services, the expectation is that the services will be rendered with appropriate competence, skill, care and diligence. Unless you can show that the issue which invalidated your insurance cover was something that ought to have been detected when the service was rendered - i.e. when the adviser did his research and presented his findings. So your situation here crucially depends on why the insurer is disclaiming cover. If this is something that your adviser ought to have identified with reasonable skill and care you can not only refuse to pay the adviser’s costs and fees, but sue the adviser for compensation for the loss you have recovered as a result of being uninsured. But if this is something that only arose after the advice was given and was not something that the adviser should have forseen, you have got the service you paid for from the adviser - competent and skillful advice - and your beef is with the insurer. And, either way, you’re not talking about whether the adviser has acted in “good faith”; you’re talking about whether the adviser did what they were contracted to do.

Oh, OK. Forget the bit about the refund of premiums, so. But the rest of the analysis I think is still sound. You crucially need to identify why acting on the advice your received didn’t work out the way you hoped and expected. But, absent a fairly unusual term in your contract with the adviser, the fact that it didn’t work out doesn’t necessarily mean that the adviser didn’t act in “good faith”, or that she any liability to you.

20

I’d say this is a fairly common obligation in most jurisdictions. The thing is, the OP doesn’t really say that she didn’t complete her contract. What he says is that the transction didn’t have the outcome he hoped and expected, but he’s not clear - and I think doesn’t entirely know - why. The contractor may have been dishonest. Or she may not. The problem may have arisen after the adviser’s works work was done. Etc, etc. And he’s tantalisingly coy about what service exactly the contractor was supposed to render. All we really know is that he’s unhappy with how things worked out, and he thinks the adviser contractor should make him happy and, if she doesn’t, that’s bad faith.

It’s possible that the OP has a much bigger remedy against the adviser than simply refund of payments made; the OP may have a right to damages/compensation. On the other hand, it’s possible that the OP has no remedy at all against the adviser. On the basis of what the OP has said so far, I don’t seen enough to establish any clear remedy against the adviser, or to justify an accusation of “bad faith”, as suggested in post #1.