Wedding Cancelled: Deposit Woes

[jim hall]

Jim,

 

"This will only end in bad word of mouth, and I know when it comes to independent business, it's something you can't buy. Right now I have nothing but bad things to report about this photographer... a little compassion would go a long way in this instance."

 

First of all, let me say I am sorry for your plight. However ...

 

If were the photographer, with a valid contract in this case, with a valid non-refundable clause for a retainer, with an appropriate amount for said retainer and you told me the above ????

 

I guess I would have to say, "Do what you need to do --- But don't threaten me."

 

The legal avenue that you talk about could be on you. Ever heard of "defamation of character, liable, or slander???".

 

Like I said, I am sorry for your plight, but business is business. And this is exactly why there are contracts.

 

Good luck in the future.

[think27]

Points have been made... Lets not beat a dead horse.. I did clean up again...sorry. Things were escalating again.

 

Jim - we all would love to know how things turned out and I hope 2007 will be a good year for you.

[paullehmann]

He cant fulfill the contract because there is no wedding to shoot? Im not saying you have any blame, but I would like to hear how it his fault there will be no wedding.

 

You can't fulfill you part of the contract either. There is no wedding that will generate the anticipated revenue for his business. On the other hand, the photographer has held the date for you to the exclusion of every other person on the planet, not matter how much more they may be willing to pay him to cancel on you. Fulfilling his side of the contract already began for him, and if he had to tell one person "No" then your fiance' (assuming we want to blame her) has already cost him money.

 

He wont get the money he would have gotten by shooting your wedding.

 

He wont get the money he could have gotten by shooting somebody else's.

 

He may not get any other bookings for that day.

 

His good faith efforts to fufill his part of the contract have probably just cost him a thousand or thousands. In that light, yeah photographers who have been burned before write retainers as liquidated damages every contract afterward. "Burn me once, shame on you. Burn me twice, shame on me"

 

Its not your fault, but contract disputes rarely have anything to do with fault. If it did, it would be torts, not contracts.

 

Perhaps you may nicely ask him if you are refer another couple to book that weekend if you might get your retainer back.

[paullehmann]

...and to add to my prevous post, just to show that Im not against you, you may check the contract to see if the term used is "deposit" or "retainer." Many states will not allow deposits to be forfeited without some additional legal requirements. If the contract says "retainer," however, then your chances for legal recovery are nil. Thats when meeting him in the middle may or may not work.

[Jerry_]

If you can't get a refund, have a big beach party and require the photographer show up and do his/her thing. You have a 'pre-paid' service call, see if the photographer is up to the task <non-wedding gig it may be.>

[gerald_donnelly]

Do you have a friend, friend of a friend, family member, friend of a family memeber or coworker getting married or considering marriage? If so try to get them to use your photog to negotiate a refund-full or partial. (Even if it's not on the same date) My contract states a nonrefundable retainer, but I would do a refund if I could rebook a on the same date or pick up another one that I may not normally get.

GD

[BrianS1664879711]

I've seen this situation several times on Judge Judy -- my primary source of education on the law. In one case JJ made the point stated several times above: even if a deposit is called "nonrefundable" on a contract it can be ordered refunded by the court if it is unreasonable. She did just that in one case because the plaintiff was quite pathetic and the defendent was an arrogant jerk; he booked another wedding on that day anyway and lost no income from the cancellation. In another case she dismissed the case - the photographer lost a days earnings and the contract was broken by the plaintiff, so the plaintiff lost the deposit. This was after considerable questioning of both parties to clarify what was written and verbally discussed regarding the intent of the deposit. She did suggest that the photographer might be gratious and offer to transfer the deposit into some other sort of service - like a portrait... or a beach party.

[john_h.1]

"you may check the contract to see if the term used is "deposit" or "retainer." Many states will not allow deposits to be forfeited without some additional legal requirements. If the contract says "retainer," however, then your chances for legal recovery are nil."

 

This comes up often and is a frequent misconception. It doesn't really matter what you call it... a deposit or retainer. You could call the up front payment anything you want... "The Mr. Magoo Payment Arrangement" it does not matter.

 

What counts is how the payment is treated. If you pay someone to be available to render services at a specified time and date, that is more difficult to obtain a refund. The arrangement should be called a retainer because that is what it is but, again, you could call it anything.

 

A clause that requires an advance payment and no more is often easier to get refunded. It should be called a deposit but you could call it something else. An upfront payment that is catagorized as non-refundable could be either of these things and/or considered as liquidated damages which is a contract term that spells out what the measure of damages is in case of breach. This can be spelled out that way or exist unlabled disguised as one of the advance payment schemes discussed above.

 

As to the photographer not being able to shoot the event, that alone does not excuse Jim's obligations. All the talk of fault is really irrelevent. A contract can be breached by non performance of the other side whether its their "fault" or not. Contract defenses such as 'Frustration of Purpose' or "Impossibility" are the closest exceptions but are a long shot.

 

And again, its not the signing of a contract that has a non-refundable up front payment that counts, it whether that payment scheme is legally enforcable even if signed. As I discussed above, $500.00 very likely is.

 

To answer Jim's question again, yes, seeking legal counsel is advisable and as mentioned elsewhere it can often be obtained free with a one time consult. It is also very sensible to try to make an arrangement with the phtographer as others have suggested.

[BrianS1664879711]

"My only hit with that (and I mentioned it only once, yet it's everyone's focus point) was that if the wedding ISN'T going to happen, the photographer cannot UPHOLD THEIR CONTRACT to shoot it."

 

I also recall Judge Judy making a major point that the fact that the borken engagement was the "fault" of the former lovers, not the photographer, and the photographer WOULD HAVE fulfilled the contract IF HE COULD HAVE, but it was through the actions of the former lovers that HE WAS DENIED THE OPPORTUNITY to fulfill his part of the ocntract.

[john_h.1]

Brian's reliance on Judge Judy would normally be insane as its a TV show but she accurately follows the law. The illustrations in his post are good. If only there were TV shows about photography.

[roxyandkaidotcom]

Totally off subject, but the last couple of posts reminded me of an episode of Judge Alex I

saw the other day. This girl took the most HORRRRRRIBLE wedding photos ever. She

showed up to the wedding with a BAG FULL of DISPOSABLE CAMERAS and said her

equipment had been stolen a few days earlier. When they got mad at her for taking such

terrible pics (they had paid her like $1000!) she said they should be grateful that she had

showed up at all and saved the day ... that she could have just said her equipment was

stolen and sorry, she couldn't do it. She kept calling herself a hero.

 

Obviously, she lost.

 

At least that didn't happen to you Jim!

 

I love court shows :)

[wulf...]

Jim,

Don't forget that this photographer has a business to protect. Word does get around. He gives you a refund and not the next person but they heard through the grapevine that he refunds deposits then next thing he's in court because he refunded you. It's not personal, it's not always pleasant, it's just business.

 

I ordered some photography equipment through UPS and then we had a blizzard. Payed double for 2 day air delivery. Because of the storm they couldn't deliver it in the promised time. They did eventually deliver it but not according to contract. They wouldn't refund any of the difference in delivery charges. I still had to foot the full bill. I didn't feel it was fair but nothing I could do about it. They could have lost millions if they started making exceptions on refunds.

 

It could impact his business to make exceptions. He might not even be happy about keeping the money but afraid to make the exception because it will get around. I'd talk about applying it to something else for that day with friends and family if nothing else. He can't just keep it and deny you service if you still want to do something on that day. Don't get angry, just talk to him about options. Oh, and I'm sorry that things didn't work out for you.

 

Jeff

[craig_gillette]

The usual answer to other photographers on these forums asking for legal advice is to ask a lawyer. You should too.

[BrianS1664879711]

Good advise, Craig, but asking other people's experience/opinion just to gain a perspective of hte options and likely outcomes isn't a bad idea. Just as long as you don't believe everything you hear or blindly follow unverified opinions. WRT $500 lawsuits... small claims court (or TV court) is the only way to go. It cost me $300 to have a lawyer draft and send a demand letter for trademark infringement a decade ago. Legal fees are expensive... often too expensive for a "small issue" like this one.

[photographydreams]

first of all, i know nothing about law, so I won't give an opinion about the legal aspects... Just thinking about your situation, i thought of the following points:

 

1) Sometimes you agree to a contract and afterwards you regret it because you wish you hadn't spent so much money, or you see a better offer etc. however (at the risk of sounding oldfashioned), you gave your word, so you bit the bullet and make a better decision next time. I think that's integrity.

2) On the other hand, you're in a painful situation and this is a lot of money for you.

 

I would suggest to start by deciding that you will show integrity and not try to manipulate your way out of a contract you agreed to, either by threatening bad word of mouth or anything else. But then call your photographer and explain that you know it's non-refundable and you signed that contract, but that this is a lot of money for you, and you were wondering if they might consider helping you out. There have been many suggestions for how they might do this in the thread.

 

This way, most likely there will be good feelings all around.

[alec_myers]

Just a thought...

 

I'm not sure there's a lot of merit in an argument along the lines of "the wedding won't happen so the photographer won't be able to fulfil the contract so I should get my deposit back". Broken-off engagements are common enough to be considered a prima-facie example of when a non-refundable retainer would be - well - retained, surely?

[craig_gillette]

The problem is, few photographers are lawyers (as is often apparent in their legal discussions), nor are most customers. Both of whom could give well-meaning and seemingly authorativie advice. While it might cost a fair amount of money to actually take action (and risk not necessarily recovering enought to justify it, or to recover fess, etc.), the only person who would know enough about the specific applications of contract law to the case at hand, would be an attorney.

 

His/her advice might be that this would cost more than you could recover or maybe the OP has a particular working relationship with an attorney that he can get an adequate consultation quite inexpensively. Likewise, the photographer might be wondering, is it worth keeping $500 and not being sure when he gets an attorney letter pointing out legal flaws in his contract? Will he spend $300-500 to find out if his contract is a bullet-proof as he hopes? Does he want to deal in dueling letters until he gets a small claims summons? He's got (or had) 10 months to re-fill that schedule.

 

So far, he's protecting an entry in a schedule book, against an event many months in the future. Realistically, the "pro" might be better off, returning the money and freeing his schedule. What's he trading that $500 against? Both the customer and the pro really need to have an idea what their actual legal rights and liabilities are. Neither unhappy customers nor photographers are the best ones to answer that.