This is an updated version of a post I put online several years ago, in response to complaints about “handshake” offers from a particular agent at a large agency.
That agent is no longer making those offers (as far as I know). And handshake agreements are rare these days. But I’ve recently heard from several writers who received handshake or no-contract offers from other agents at other agencies–so it’s not impossible that you may encounter such an offer in your agent search. If you do, there’s reason to be cautious.
What’s a Handshake Agreement?
According to Wikipedia, a handshake agreement, or oral contract, is
…a contract, the terms of which have been agreed by spoken communication. This is in contrast to a written contract, where the contract is a written document. There may be written, or other physical evidence, of an oral contract – for example where the parties write down what they have agreed – but the contract itself is not a written one.
“Spoken”, here, is metaphorical: the agent doesn’t need to literally speak the words. The point is that they are offering some form of representation without a written contract to formalize the arrangement. This might be an email promising to submit your work to a few publishers to “see what happens”, with a contract to follow if a publisher makes an offer. Or the agent might tell you outright that they prefer to work without a written contract. Or there might be no mention of a contract at all.
Why Should You Be Wary?
A handshake is not today’s professional standard.
Decades ago, so-called handshake deals were common in the agenting business. You and your agent agreed that the agent would represent your work to publishers; once your work sold, the agent’s right to receive commissions and to act on your behalf was formalized in the agency clause of your book contract. Before publisher consolidation created the mega-houses, before the digital revolution and the array of new rights and markets it has spawned, before authors’ backlists became valuable, most authors, agents, and publishers deemed this to be enough.
But the present-day publishing landscape is far, far more diverse and complicated than it was before the turn of the century. There are more rights, more avenues to sell and re-sell them, and–at least potentially–much more money. In this increasingly complex environment, a simple, informal handshake plus an agency clause are no longer regarded as sufficient. While there may still be some established long-time agents who work on a handshake basis, author-agent contracts have become the professional norm.
A handshake doesn’t protect you.
Oral contracts do carry weight–if they can be proven. For authors, though, the concern isn’t so much proving the relationship exists as it is setting out the terms of it.
As noted above, publishing is far more complicated than it used to be. As a result, so is agenting. Myriad issues need to be addressed when agreeing to representation–from commissions and payments, to expense reimbursement, to termination provisions, to what happens after termination or if the agent goes out of business, to issues surrounding self-publishing.
It is very much in your interest–and also in the agent’s–to clearly and precisely lay all of this out at the outset of the relationship. Otherwise, you not only lack a clear understanding of what the agent can and will do for you, you have severely diminished options to demand accountability or to take legal or other action if the relationship goes bad.
A handshake may be a warning sign.
In some cases, it may suggest a lack of professional expertise: the agent isn’t current on reputable agenting practice. That’s a red flag in and of itself. But there may also be a more self-serving (for the agent) reason for a handshake offer. Putting it bluntly: a handshake deal makes it easier for the agent to get rid of you.
Maybe the agent doesn’t want to bother with a client whose work doesn’t sell in the first submission round. Maybe the agent isn’t all that enthusiastic about your manuscript and is hedging their bets in case there are no offers (and if there are offers, is this really the agent you want representing you?). Maybe the agent has one publisher in mind and is up for a quickie sub but not a longer-term commitment. Maybe the agent only offers contracts after a manuscript finds a home, so they can disavow the authors they aren’t able to sell and look like they’re batting a thousand. (Be especially concerned if you get a handshake offer from an agent at an agency where contracts are the norm.)
All of these scenarios allow an agent to offload accountability (and you), with minimal consequences to them but potentially very negative impacts for the author. And they aren’t just theoretical. Over the years I’ve heard from writers who reported experiencing all these things as a result of a handshake deal.
Your agent will never be as dedicated to your work as you are: there are professional considerations, for instance, to how long to stick by a manuscript that stubbornly isn’t selling. But an agent should demonstrate at least enough commitment to offer a written contract, which is not just standard professional practice, but makes them accountable both to you and to the agency of which they’re a part.
It’s incredibly hard to walk away from an offer, even if the offer isn’t a good one. But if the offer is a handshake deal, you just might want to make that very tough decision.
Here is the SFWA Contracts Committee’s Model Agent-Author Agreement, with annotations: https://www.sfwa.org/member-links/committees/contracts-committee/model-agent-author-agreement/