LEGAL BRIEFS
You’re still entitled to call fees even if you neglect to collect
Mark Pestronk is a Washington-based lawyer
specializing in travel law.
Q:Our agency has a contract with a large corporate account that requires the account to pay our fee of $20 per
call to the after-hours service. However, for
the first six months of the contract, we ne-
glected to charge this fee, and the volume of
calls was quite high. When we asked the ac-
count’s procurement director to pay us for
the six months’ worth of calls, he refused,
stating that we had waived our right to col-
lect the fee. Is he right, or can we still collect
it? Does it help us that the contract contains
a “no waiver” clause? Even if we are right,
what, as a practical matter, can we do to col-
lect the back fees without antagonizing the
procurement director?
A:You have identified a common issue in modern corporate travel manage- ment: the travel management company’s neglect to charge all the different
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fees authorized by the travel management
contract. As corporate travel services become more and more menu-priced, agencies may simply be forgetting to charge all
the different kinds of fees to which they are
entitled.
If you just forgot to charge the after-
hours fees, then you did not waive your
right to collect them by waiting six months.
According to a Virginia court precedent, a
waiver “is the voluntary, intentional aban-
donment of a known legal right. It has two
essential elements: ( 1) knowledge of the
facts basic to the exercise of the right, and
( 2) the intent to relinquish that right.”
Although this area of judge-made law
differs a bit by state, I am certain that the
case quoted above is a good definition of
what constitutes a waiver everywhere. So, a
waiver must always be “voluntary” and “in-
tentional,” and you have to have “known”
of your legal right.
In your case, we have the opposite: neglect, forgetfulness and failure to follow
through between the negotiation of the
contract and implementation of the account. Therefore, you have not waived your
right to collect.
Contrast your case with the landlord
who does not charge you any late fees
authorized by your office lease. Since all
landlords are probably fully aware of their
rights to charge late fees, a tenant could
much more easily argue that the landlord’s
failure was the result of a voluntary, intentional decision.
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fourteen islands, with ten centuries of history and culture. This vibrant city offers a wealth of museums,
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Stockholm is one of Europe’s hottest port cities, with deep canals
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literary step off their vessels and right into the heart of the city.
A ‘no waiver’
clause would
certainly buttress your
contention.
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Like all of the best European cities Stockholm has a long history
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Many contracts have no-waiver clauses
such as the following, which is in Ameri-
can Express’ standard travel management
agreement: “Any delay or omission of a
party to exercise any of its rights hereunder
shall not waive, affect or impair the rights
of such party, and any waiver must be writ-
ing and signed by the parties.”
If you have such a clause, it would cer-
tainly buttress your contention that you did
not waive your rights. However, as another
court precedent wryly notes, such a clause
is not foolproof because “like all contrac-
tual rights, the rights under the ‘no waiver’
clause are themselves subject to waiver.”
I realize that you would not want to
antagonize the account by demanding
payment in the face of the procurement
director’s unfounded insistence that you
have waived your rights. Perhaps it would
help to have your attorney give you a writ-
ten opinion on the issue, which you could
then forward to the account with a polite
note stating that this is what your attorney
thinks.
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To submit a question for Legal Briefs,
email Mark Pestronk at mark@pestronk
.com.
