Since creating my desk-top campaign some very awful accounts of other people’s bad experiences when arranging a funeral have been brought to my attention. These include: bodies being embalmed without consent; the body of a baby cremated without consent; cremation ashes scattered without consent, graves not dug large enough to accommodate a coffin. On one occasion the face of a person who had died had been disfigured by the lid of a coffin. These are just a few examples of the array of complaints that I get to hear about from people who in many instances, did not know that there isn’t any legal requirement to use an undertaker or other funeral event organiser in the first place. All of these people had done what the majority of us do when someone close to us dies: they had hired in services to alleviate stress, not add to it.

Funeral packages rank among the most expensive purchases many consumers will ever make. Yet even if you are the kind of person who might haggle with a dozen traders to get the best price on a new car, you are likely to feel uncomfortable comparing prices or negotiating over the details and cost of a funeral, either pre-need or at need. Compounding this discomfort is the fact that some people overspend on a funeral package because they think of it as an expression of their feelings for the person who has died.

Whilst many people might understand, when they buy a funeral package, a floral tribute or anything else, that they are promising payment, few may have any real understanding of the liabilities that two or more parties take on when entering into a complex contract that involves a series of operations. I was once one of these people. For this reason I feel it necessary to include on this site my understanding of civil and common law contract which relates to funeral arranging, but note that it is not intended as legal guidance.

What is a contract?

In order to know your rights under sale of goods and/or service agreements (civil law), or common (case) law, it is important, firstly, to understand the basic principles of contract law.

Contract law is all about enforcing promises and making them legally binding irrespective of whether there is something in writing to this effect. Despite the word ‘contract’, and contrary to popular belief, a written contract is not required in order for these obligations to exist in law.

A contract may also be formed verbally or by implication, simply by one party making an offer and the other party accepting that offer – even purchasing an item in a shop, or getting into a taxi are examples of this. Of course it must be proved that both offer and acceptance were clearly communicated and understood, that both parties were legally capable of making those promises, and there was something being offered in exchange for the promise (usually money). And while ‘putting it in writing’ is not necessary for a legally binding contract to exist, it may be hard to prove what was otherwise agreed.

So, in short, for a civil or common law contract to be formed, four basic elements must be present: (1) offer; (2) acceptance; (3) consideration and (4) the intention to create legal relations. Generally much negotiation takes place between the parties before an agreement becomes binding and a contract is formed.

Charles Cowling at the Good Funeral Guide provides visitors to his site with a List of Requirements that might prove useful to print off and complete when negotiating a contract. This can be amended and requirements added if necessary.

It is my understanding that if a contract is made at home civil law allows a 7 day cooling-off provision to withdraw from a contract, but quite often a funeral will have taken place during this period. There are of course the exceptions.

Example of Implied Contract!

Although the parties may not have exchanged words of agreement, their actions may indicate that an agreement existed anyway — for example, when a patient goes to a doctor’s appointment and is paying privately. His actions indicate he intends to receive treatment in exchange for paying reasonable/fair doctor’s fees. Likewise, by seeing the patient, the doctor’s actions indicate he intends to treat the patient in exchange for payment of the bill. Therefore, it seems that a contract actually exists between the doctor and the patient, even though nobody spoke any words of agreement. (They both agreed to the same essential terms, and acted in accordance with that agreement. There was mutuality of consideration.) In such a case, a court will probably find that (as a matter of fact) the parties had an implied contract. If the patient refuses to pay after being examined, he will have breached the implied contract. More often in these circumstances the patient, unlike newly bereaved people who have arranged for a body of someone who has died to be collected and wanting to arrange a funeral, he/she will likely have been advised at the outset what the charge/s will be.

Implied contract – the unwritten promise!

As appeared to be the position in Vigers v Cook (1919), see below, many of the people that have brought their complaints to my attention were not given anything in writing before an undertaker had collected the body of a relative or friend who had died. Equally few that I have spoken too had been provided a comprehensive copy of the company terms and conditions. I am bemused why some funeral companies fail to adopt these practices, as they themselves have little to rely on should a complaint and subsequent legal claim be made against them. Any good undertaker should regard making a written contract as no more than a mirror of good practice. If an undertaker or other funeral event organiser or, indeed, even a florist refuses to provide a written contract, I would suggest finding another that will do so.  It is not advisable to rely on ‘trust’ or ‘implied’ contract alone. I provide on this site an example of a contract and it may be adapted to suit requirements.

Some people are eager for the body of a relative or friend who has died to be collected from home or an institution, and equally content to discuss and make contractual arrangements afterwards, but I think that this is a big mistake. If after the body has been collected and the person arranging the funeral decides for some reason to hire a different firm of undertakers or other funeral event organiser, they could leave themselves wide open for being sued for breach of “implied” contract. After all traders have legal rights too. That said, since most undertakers appear eager to collect a body without satisfying civil (consumer) law, e.g., making available terms and conditions and/or confirming the cost of the funeral, I doubt that many, if any, would achieve a successful outcome in a court of law.

Some funeral companies may not provide their clients with a written contract but I would imagine that most these days do provide glossy brochures which advertise what they can do for their clients. As the majority of undertakers are members of a trade association they will have adopted the association’s code of practice and principles. I hasten a guess that many undertakers put up websites these days, which is another means of displaying what they are ‘promising’ to prospective clients. These are all sources of information that can be relied on for evidence about what an undertaker or other funeral event organiser is promising to do.

Be mindful that under civil (consumer) law, if you agree with the service provider that the service will start straight away, you waive any cooling-off rights that you may have had. Note that the statutory time bar for bringing a case for breach of contract is six years.

Unique Contract and Specific Performance!

Contract Law makes provision to seek remedy and compel specific performance in some circumstances. A decree for specific performance commands the defendant to perform his or her part of a contract after a breach has been established. It is issued only in cases where the subject matter of a contract is unique, meaning of unusual benefit to the other party, and ordinary money damages aren’t sufficient. Specific performance may also be applied in the sales of one-of-a-kind items or personal items, for example a piece of jewellery.

It would appear from Vigers v Cook (1919), which was a case of appeal that set a precedent, that a funeral package is a “unique” contract. The judges agreed that:

• When an ‘order’ is taken for a funeral the term “funeral” indicates a complex operation, a series of single operations, that forms “one” contract.
• Undertakers are not simply employed to “dispose” (an insensitive legal term) of a body, but to carry out the funeral with due regard to the feelings of the relatives and to the religious and other sentiments associated with funerals.

My interpretation of the judge’s comments in this case leads me to believe that even if ‘one’ single operation of the funeral arrangements goes wrong the whole contract has been breached.

I struggle to imagine how a ‘remedy’ can be determined in all instances for something as final as a burial or a cremation. Equally I struggle to imagine how an Order could be made for a specific performance unless of course the actual burial or cremation of the body has not happened, which would or could mean a body remaining unburied or not cremated whilst  resolution is found for a dispute. In my view staff at the Office of Fair Trading need to get active in proposing legislation that affords added protection to often vulnerable, newly bereaved people. It would need to be quite distinct and set apart from other general consumer legislation that affords protection to the ‘average’ consumer looking to the courts to compel specific performance.

Damages/compensation

It has been difficult for me to try and locate case law about funeral arranging which reveals that someone could successfully claim damages (compensation) when something goes wrong with a contract. This is likely because of the ‘Alternative Dispute Resolution route, which prevents the common (case) law from progressing and setting precedents for consumers to rely on. (See section on Alternative Dispute Resolution).

When I took legal action against an undertaker, the judge made reference the case of Jarvis v Swan Tours (1973). This appeared strange to me at the time. I could not grasp why a judge considering whether to allow my case to proceed to trial would even mention a case about a gentleman who was successfully awarded compensation in an Appeals Court because he did not enjoy his holiday. After reading the case details it became more apparent. This was likely because adequate compensation for inconvenience and for loss of benefit which the plaintiff reasonably expected to derive from the contract for his holiday had it been properly performed by the defendants. Evidently the judge in my case wasn’t aware of the Vigers v Cook case which is solely about a contract for funeral arranging, otherwise I assume he would have made mention to this instead.

In Jarvis v Swan Tours (1973) Q.B. 233, the judges determined that a holiday package was seen to be “one” contract. One of the judges held the view that:

“These travel agents made clear by their lavishly illustrated brochure with its ecstatic text that what they were contracting to provide was not merely air travel, hotel accommodation and meals of a certain standard”.

Other cases relied on in Jarvis v Swan Tours (1973) Q.B. 233 which indicated that the plaintiff was entitled to damages (compensation) for hurt feelings of annoyance and frustration, inconvenience and loss of benefit include: Feldman v. Allways Travel Service [1957] C.L.Y. 934: Stedman v. Swan’s Tours (1951) 95 S.J. 727.

So it would appear from the cases mentioned above that someone looking to recover damages for maybe even a single operation that may go wrong with funeral arrangements is not limited to recover compensation only for the cost of that single operation. On this basis it may be foolish to settle for less. Not having ever attended a hearing for Alternative Dispute Resolution, I wonder if people making a complaint are encouraged to accept a partial refund on the account generated, or reimbursed in full with sums added for hurt feelings of annoyance and frustration, inconvenience and loss of benefit.

Sub Contract – third party contract – sometimes a hidden part of a contract!

An example of a sub-contract, which may indeed be a hidden part of a contract made in respect of funeral arranging, might be where a burial forms part of the arrangements.  Digging a grave will require the services of a grave digger who is usually contracted by the land owner. The grave digger becomes a third party to the contract, but is only responsible to the party that engaged his/her services. Note, that it is not compulsory to make arrangements for purchasing a grave and hiring a grave digger with an undertaker or other funeral event organiser. This part of the arrangements can be made direct with the land owner. If the grave is in a public cemetery the landowner will be the local authority. The same principal applies to those wishing to make arrangements for a cremation.

Contract law is more complicated than I have attempted to describe here, but I am not a lawyer. If looking to recover compensation I would advise at all times to consult with legal professionals, but it is imperative to consult with the right ones. Answers.com may give some indication about what sort of legal advice you may need to sue for damages (compensation) and provides some insight into common law criminal and civil offences upon the dead. Note that American common law derived from English common law. See sections following “Civil Liabilities” on this web page. http://www.answers.com/topic/dead-body-1