"Hiring" Volunteers. Has a contract been formed?

Question

A nonprofit organisation organized a big event, which included the possibility for the participating guests to sleep in (empty) barracks for a small fee. The organization looked for volunteers to keep a night watch there, which was required for safety and access control. Several volunteers agreed to take shifts, in exchange for free food and lodging during the event.

Now on the day of the event, almost all of the volunteers just failed to show up. When they were called, they said they were pissed off and wouldn't do it. In the end, the organisation had to hire a professional security service for lots of cash.

Could the organisation ask for compensation for the volunteers failing to fulfill their side of a contract? Normally, if somebody fails to provide an agreed-on service, the other party can buy it from someone else and the first party has to pay the extra costs.

It seems that Art. 394 OR says service contracts can also be valid without payment, if that is agreed on. Not sure if that article is applicable to this situation, though.

Maybe important: There's no formal requirement for service nor for work contracts. So either of them can be formed by oral agreement.

Answer 1

canada

There is likely no contract

Your question requires interpretation of the facts in order to determine whether a contract exists. I will assume the facts as stated in the question at the time of this writing are true and that there are no additional relevant facts.

One prerequisite to contract formation is intention to create legal relations.

Given that the parties referred to the position as a "volunteer" position, this does not disclose to me an intention to create legal relations.

The provision of free food and lodging is more like an honorarium that has been recognized as not giving rise to a contract. WCAT-2007-03752; WCAT-2007-03753 (Re), 2007 CanLII 84052 (BC WCAT). Even the promise of money payment, when promised to a volunteer, does not make a contract.

This has also been held to be the case for volunteer firefighters, even though they are promised certain things in return. The volunteer firefighters do not actually take on a contractual obligation.

Answer 2

At common law, three things are required for a contract to exist: an offer, an acceptance, and consideration. The offer is "would you like to do x?" An acceptance is "yes, I would like to do x." Consideration is something of value exchanged. Here, consideration is the food and lodging (there doesn't have to be money, it can be anything of value). In this example, there appears to be an offer, an acceptance, and consideration. Therefore, there appears to be a contract

The question of performance is separate: if the worker (not a volunteer, since they are given remuneration) refuses to satisfy the contract, they cannot be forced to work (i.e. slavery). They may, however, have to pay the other party damages for their breach of contract.

Note: state laws may differ from common law.

Answer 3

germany

Under German law, this would most likely be treated as a Gefälligkeit (literally: "courtesy" or "favour"). Generally speaking, a Gefälligkeit is characterized by being motivated through a personal relationship between the parties, and not by a contract, and is typically free of charge. In case of a Gefälligkeit, in contrast to a regular contract, there is typically no (or only very limited) liability if the service is not rendered properly, or if there is damage through negligence.

So most likely the volunteers would not be liable for damages for not showing up. This might be different if they knew that their not showing up would be extremely problematic, or if they deliberately did not show up to harm the organisation, but that would have to be decided in court.

Answer 4

Now on the day of the event, almost all of the volunteers just failed to show up. When they were called, they said they were pissed off and wouldn't do it. In the end, the organisation had to hire a professional security service for lots of cash.

Could the organisation ask for compensation for the volunteers failing to fulfill their side of a contract?

What allegedly were the terms of the contract?

It's very difficult to establish a relationship of master and servant when they are characterised as "volunteers", even less so to establish that the "contract" required their attendance at an arranged time and for a full set period of time, and to establish that they could not terminate their performance at their own will.

A judge is likely to immediately try to find holes in the contract formation, such as lack of objective intention to enter legal relations, lack of sufficient notice of terms, mutual mistake/lack of meeting of minds. There is unlikely to be any prior course of dealing or ordinary market norms from which implied terms can be inferred.

And even if there was a contract found, its terms might not help you - if any contract could be terminated at will by the worker, then you would struggle to establish consequential loss.

Normally, if somebody fails to provide an agreed-on service, the other party can buy it from someone else and the first party has to pay the extra costs.

Actually, that's not normal at all, and to my knowledge is unheard of in the employment domain. The general practice is that the worker's loss of wages, benefits (like pension), continued employment, and loss of reputation, are the limit of their contractual liability for non-performance. Criminal (especially for certain occupations) or tortious liability would be a separate thing.

There are various political policy reasons why this is so.