The obvious contractual defect to the Candidate Acceptance Agreement is a failure of consideration. The recruiter is really not giving up anything in exchange (“legal detriment”) for the promise of the candidate to accept. This is because there is no liability on the part of the employer (and therefore no absolute right to the fee) in a contingency-fee agreement until the candidate is placed.
Alternatively, the candidate is likewise receiving nothing of value (“legal benefit”) from the recruiter because the job offer was unacceptable. In fact, the candidate has spent his or her time and effort without being compensated. A subjective rejection of the offer invokes no liability on the part of the candidate because the “objective theory of contracts” (e.g., an objectively better offer) can’t apply when no contract exists.
So under both detriment to the promisor and benefit to the promisee theories of consideration, the contract is unenforceable.
Even our “payment upon acceptance” system in Chapter 6 of the Fee Collection Guide* (“Collecting Before The Candidate Starts”) or Chapter 102 of Placement Management* (“Getting Paid Before The Candidate Starts”) does not change this outcome unless there is an acceptance. If there is, the employer owes the fee.
There’s a goldmine for recruiters by using a CAA in conjunction with a “payment upon acceptance” signed fee schedule. ‘The CAA causes the candidate to accept. The Agreement may be without consideration (“nudum pactum”) , but it’s not being enforced. The Agreement with the employer is the one that counts.
In this scenario, it doesn’t matter legally whether there is any evidence of acceptance of the CAA. The reason for the acceptance is so irrelevant that you could even pay the candidate a “sign-on bonus” to accept. All that matters is that the candidate accepted and the offer was then withdrawn. (Of course, the acceptance must be real. Otherwise, expect a Counterclaim for fraud and conspiracy.
As to acceptance of the fee schedule by the employer, e-mail works.
As with any fee agreement, the acceptance must be unequivocal and reference the identical dated agreement received. Any employer lawyer will allege that only a signature on the actual document binds his or her client. So a signature on the actual document is as good as it gets. That means a full fee, attorney’s fees (if provided in the agreement) and costs.
