The bride wants her deposit back

Please help! I have never had this problem. At the begining of March I accepted the bride's

deposit for $300.00. The contract was not signed at that time because we had a scheduled

appointment for 2 weeks later and she wanted time to decide which package she wanted.

She didn't show up for the appointment because she forgot. It is now one month before the

wedding and her original pick for a photographer has become available. She wants her

deposit back. Do I need refund her deposit if she didn't sign the contract? I have no way

of booking someone else with such a short notice. What do I do and how do I say if

appropriately?

Never EVER EVER EVER accept a deposit without a contract or a contract w/out a deposit. At this point, you have no agreement with the bride. Refund the $300 and consider this a lesson learned.

Written agreements help to prevent such misunderstands and arguments later. Even if it was

not possible to sign the contract at the time because of no package agreed, there should

have been some written agreement regarding the deposit.

 

It is indeed a lesson learned. Though you have been badly let down I would pay the deposit

back.

I agree with the other advice. Always get contract and deposit at the same time. One without the other never works and is usually a signpost to a tricky customer.

Being in business, there is so much for us to learn along the way. Unfortunately you do not have a contract with this bride unless both of you have signed the contract and each of you have a copy. Yes there will be times when people of little character will do unethical things. The time to handle the client with kid gloves is during the consultation, when they commit and ask you to photograph the wedding, get a contract signed and collect the package price in full or get a deposit. Document every inquiring phone call by wedding date requested. Then if worst comes to worst you can show that you turned down potential business for the same date because you had a signed contract with the bride in question. Remember, "you are in the people business," most of the relationships we build with our wedding clients are positive ones. Occasionally we will deal with a person of low character. That is part of this business.

What Karen said.

Im curious why someone would hand over $300, without a signed contract or receipt in the first place? All you can do is to hand this back to her.

Contracts (with some exceptions) do not need to be written in order to be enforcable. It can be difficult to prove the existence of a contract or its terms if its not in writing. Asking for legal advice from people on a photography website is unwise. Even worse, you ask for such advice without even explaining what the operational terms of the deposit are.

 

All the answers given are the safest possibility, which is to fold and not risk a fight over the $300.00. No one could possibly give you valid legal advice based on your explanation but, the answers do give you a known outcome.

I agree with everyone, and I believe ( though IANAL ) that without a contract, one which has a liquidated damages clause, you could be sued for the deposit, so you might as well just give it back at least as a good will gesture.

 

Patrick

Actually it's not clear whether or not there is a contract here, or, if there is, what its terms are. Contracts come into being in a variety of ways - not just by signing pieces of paper. But by far the best business practice would be to refund the deposit and, in the future, adopt a procedure of formally agreeing contractual terms when the deposit is paid.

Laura, here is a candid question for you. Can you afford to give the bride her money back? Have you already used it to prepare for the wedding? I remember when I first started out in wedding photography. Finances were tight. Right or wrong - and probably out of a good dose of ignorance - I used "deposit" money to fund equipment, film and proof book purchases for the upcoming wedding but I was clear in conversations with brides that any cancellations less than 30 days out resulted in no refund of any monies paid. The same thing inevitably happened, bride calls and says the wedding has been cancelled. My response - "your deposit money was used to make final purchases to prepare for your wedding" - fell on deaf ears and she was livid even though I only had 1 week of notice. I stuck to my guns though. Never heard from her again.

 

Shortly after that I made a very basic change to my policy:

 

1. Always get a signed contract

2. Always get a RETAINER and define RETAINER in your contract and state NO REFUNDS or clearly state a REFUND policy

3. Increase your retainer amount to make sure your client is serious about booking you. I've found that $500 minimum is usually adequate, but will be moving to 50% of the package price for 2007 weddings.

3. Make sure your client knows that you are not actually booked for their wedding until the RETAINER check clears your account and the contract is SIGNED.

 

At some point, you need to start collecting samples of comprehensive contracts from other photographers, create your own, then hire a lawyer to review it for you.

 

In your particular case, I would have a very candid conversation with the bride (assuming you told her the deposit was not refundable): "I appreciate the fact that you want the photographer of choice for your wedding day and you've changed your mind about hiring me. However, when you hired me, I immediately began making preparations for your wedding and have time and expenses involved on my side, including turning away other brides interested in your wedding date and setting aside time for a meeting which you missed. It's now too late for me to book another wedding. That's why deposits are not refundable."

 

Once you make the decision, stick to your guns, but make sure you can enforce your side of the bargain when someone cancels.

 

Or, if you want to refund the deposit to avoid a dispute, simply do it and don't let it happen again. My policy is that I will refund a retainer if I can book another wedding on the same date for an equal or larger package price, less a $200 admin fee to cover hours of lost time. Brides think this is very fair.

 

I've also found that brides can be somewhat unknowledgeable about business practices in this industry. It's not that we want to keep their money for a job we did not do because they canceled. The bottom line is that we plan our work many months in advance, and we turn away plenty of opportunities to shoot for others because we're holding a date open for a particular bride. It's not fair for us to be impacted negatively becasue a bride decides she wants to change her mind at the last minute. sometimes there is very little chance of you rebooking a particular date even if you have 4-6 months notice.

 

Chris M. Central Florida

Was there an oral agreement? If so, you can keep it. Talk to her and let her know you had such an agreement. May go to small claims, may not. Depends on how much each party is willing to fight for $300.

 

With that said I would personally explain to her your oral contract, if one existed, and see if she wants to take it further.

 

If that hassel is worth it, then stand your ground. If not give it up. Thats why we preach and preach and preach some more about contracts.

 

Remember be professional!

Give her a refund, graciously. You did not follow up on the contract the way you should have. Did you tell her that the date remains open until she signs and you cannot promise her any availability?

 

You got her 2 months before the wedding, maybe you can replace her.

You can always market yourself, telling wedding planners, florists, church coordinators, etc. that an opening has occurred in your schedule.

 

Just remember, no obligation by you or to you until she signs on the dotted line and gives you the deposit. And do not say, "I'll try to keep it open while you decide." They will ask for that. Say you do not commit or reserve dates in any way until a bride commits to you in writing and with the deposit.

Give her a refund, graciously. You did not follow up on the contract the way you should have.

 

You got her 2 months before the wedding, maybe you can replace her even now. You can always market yourself, telling wedding planners, florists, church coordinators, etc. that an opening has occurred in your schedule.

 

Just remember, no obligation by you or to you until she signs on the dotted line and gives you the deposit. And do not say, "I'll try to keep it open while you decide." They will ask for that. Say you do not commit or reserve dates in any way until a bride commits to you in writing and with the deposit.

 

You are like a retailer who has a product called June 15, 2006. You only have one of those on display. You cannot get any more of them, it is unique. A customer asks you to hold it for them while they decide how it fits in to their life. You tell them that you are sorry but you do not do that, first buyer gets the product. If someone else buys it first, it is gone. You tell them that you hope they come back and buy it because it would be perfect for them, but you will not set it aside for them. It will remain on on display for the first buyer. You are that retailer.

 

Bill

Laura-

 

What I dont know is how long, if at all you have been reading the wedding forum on PN. I just landed my first wedding albeit a small informal wedding it is my first.

 

The date is May 6 and I have half the package price in the bank and escrowed temporarily in case something happens and the client flips out over some detail.

 

It was really easy to set the agreement before these people. It is good to explain how it protects them too. I said if someone comes along for more money I can't bail on them.

 

This client could not decide on presentation options so we agreed that they would get photography and proofs for a set amount on the initial contract. If they wanted some albums or folios we would review their picks and order on another contract. They could say no but I am not concerned about that I really was worried about the wedding work.

 

I am quite comfortable over the whole arrangement because I have lived out the bad scenarios on the forum and thus knew what to do and what not to do. You experienced folks prepared me well.

 

In your case be glad it wasnt a bigger offering but you may be suckin' this one up. Remember what you have learned.

Never save a date without 1) a retainer/deposit (I hear that you should call it a retainer) and

2) a signed contract.

 

NEVER.

Laura - you have some good advice above.

 

I'm not a lawyer, but my recent experience with small claims court (I got the money in the

end) and my conferring with 2 lawyers and 2 law students makes me believe that verbal

contracts are legally enforceable, even though they are difficult to prove.

 

If you keep it, she might give up, or give up AND badmouth you, or try to take you to

court. No idea how things would work out in court, but you may want to consider the

publicity implications of her badmouthing you around town. Small town? Big city?

 

you have learned a lesson. make refund clauses very clear in your contract. don't book

without a retainer, and don't accept $ without a contract. you may also want to make your

retainer a bit higher so people will not give a retainer so casually.

Unless specified in a signed contract, deposits must be refunded since they generally are applied towards the final purchase price.

That's the biggest reason for NOT having a "deposit" but rather a non-refundable RETAINER. The retainer states that you are being "retained" to hold the date open, thereby not accepting any other engagement in favor of the client who has retained you.

If they change the date or decide to use someone else, you are not obliged to give them back the retainer.

 

Check with an attorney and create a solid contract so you won't have these uncomfortable situations again. It pays. Oh, by the way, if you pay an attorney a retainer, it only says they will be available for you, not that they have to give you anything in the way of services. :)

 

Lou

Lou, you are right about seeing an attorney. The remainder of your post is a good reason why.

 

Deposits are not governed by whether a contract is in writing except unless some state has a specific statute or common law case law to the contrary. Calling a sum of money given to a service provider a retainer is not a very important issue. Its how the money is to be handled what counts. If the payment is to secure the photographer's presense for a particular time, it is generally treated as a contract term for such an event and can non-refundable unless there is some contract defense. A sum of money paid as a mere advance payment may be a simple deposit but the funds there too can usually be kept as an offset for losses in case of breach. Most often these advance payments are a hybird of these things. A deposit, retainer, liquidated damages cluses or whatever you call an arrangement is usually governed by fairness issues. Most states require deposits kept for breach to be reasonable for covering lost profits (as opposed to lost grosses) as may be likely at the time of contracting. A few states require factoring such costs as exist at time of breach too.

 

The lawyer retainer example is also flawed. A retainer may be paid for merely being available but many, if not most, retainers are designed differently. One example is where a payment must be made before the lawyer will perform duties and then fees and expenses are paid from the retainer as time goes by. Lawyers and photographers contracts are not bound by names as much as the actual terms. They can be fashioned in many ways.

 

In Laura's case, these terms are really unknown. None of the comments here, including my own, should be used as legal advice. She needs her own counsel.

"Just remember, no obligation by you or to you until she signs on the dotted line and gives you the deposit."

 

This too, I'm sorry to say, is wrong. Contracts can be made in writing, verbally and even by conduct and before money is exchanged. But do not take my or anyone else's word for it here. Every wedding photographer should get professional legal advice on how to set up their business practices, contractual arrangements and a guide for what to do in event of contrats failing.

Yes, John, but if one has a signed written contract from a customer, the dispute phase can be rather shorter. That's not legal advice; it's practical advice.

 

A verbal contract is much more susceptible to the parties' varying memory of the verbiage in the contract.

 

The very strong consensus is to get the agreement about fees, and conditions for refund of fees, in writing.

 

Makes sense.

 

Be well,

I agree with you on that 100%

The sentence of mine that John said was incorrect evidently requires some explanation. That was an admonition to Laura to not assume that she is entitled to moneys paid to her in the absence of a signed agreement, not a statement of contract law. Sorry if I was not clear.

 

To find out what creates an enforceable contract in your state for a wedding photography situation, see an attorney. Lawyers, insurance agents, and CPAs often are consulted by new businesses to get things started correctly. As are trade associations, business books, Web sites(sba.gov), and friends already in business. It may be easier to start off right than to make a correction down the line.

 

Even with the law on your side, a public relations nightmare can cost more than you gain.

The example of the lawyer is merely to illustrate a semantic difference in terms. A deposit and a retainer are two different things. A deposit implies that you have paid up front for part of a total cost. A retainer is a reservation for services that have not yet been delivered nor paid for.

If you pay someone a retainer it is implied you are going to use them at a future time for services. Whether you do or not is irrelevant. If you are paid a retainer for a particular date, it is usually preventing you from booking that date. so if the client changes their mind they have prevented you from booking other business on that date. In that case it will usually hold up that you get to keep a retainer.

If they paid you a "deposit", it only means you owe them goods and they owe you a balance. If you don't deliver anything, the deposit may be refundable. That one is harder to fight than the retainer scenario.

But - caveat - in our legal system anything is debatable in court. All laws are subject to the court's interpretation. Before going into any business, it is essential to consult with an attorney to create an appropriate contract for your business model. Without it, you are at the mercy of everyone else and their attorney.

 

Lou

If you are paid a retainer for a particular date, it is usually preventing you from booking that date.

 

Same with so called deposits.

 

"If they paid you a "deposit", it only means you owe them goods and they owe you a balance."

 

Wedding photographers are merchants of goods now? If you were correct about that, their contracts would be governed by the Uniform Commercial Code in most states.

 

Paying a wedding photographer a sum of money, whatever it is called, is usually an act that binds the photographer to a shoot at a particular time and date assuming other contratual obligations are fulfilled. This is because that what the terms of the contracts call for. You don't get off the hook merely because the money you took is LABLED a "deposit". Again, its not the name, its the actual terms of the contract that govern. You could call that part of the agreement "Gee Whiz Money" and it wouldn't matter.

 

The only part of the post that I can, in good faith, agree with is the wisdom of seeking professional legal advice for these things.