If you get a deal on a book that your former agent submitted to a publisher and have to contact the former agent to negotiate a commission, how much should you offer to pay? What would be a fair amount?I think it’s fair enough to pay the former agent in most cases (as they did earn a commission by submitting it or editing it), but what if the agent was incompetent and you later find out from an editor that they never submitted the original manuscript? Do you have to pay the commission then?I recently just got word from two editors that they never received a manuscript my agent pitched to them and claimed she submitted to them a year ago! They asked me to resubmit. If they buy the book, it looks like I still have to pay my former agent. It doesn’t seem right.
First, your contract with Previous Agent should address how long she has claim to any commission. Generally six months is the outside limit. I've waived this window for some clients on their way out the door (generally those who parted on amicable terms) but I've also held that line on projects I invested time and energy in.
If your contract does NOT include a time period, state law governs. Contract law is state law and thus varies depending on where you live, and what state's laws the contract is considered to be under. That's in your contract too.
You'll need a lawyer's advice on that point.
But, you can negotiate with her as well. Drop her a line; say you'd like to formalize the time period in which she's entitled to collect, and how much. I know that sounds scary but it's really better to get things worked out ahead of time.
The other thing is here, if you just pay her and think "bite the bullet, it's done now" and you earn royalties you've established that she's entitled to collect a chunk of those too. And from translation, or film, or what ever other deals flow from this print deal.
In other words, don't just let this slide. Get it worked out NOW before the money is on the table.
I'd also print out those emails from editors and keep those in your back pocket. I wouldn't mention them to start off in any kind of negotiation, but you have that ammo if you need it, or if it comes down to lawsuits or arbitration.
For future reference, when you're reviewing an author/agency agreement, make sure a time period to collect commission on previous submissions is specified. Six months is the longest amount of time you should agree to, for both foreign and domestic.