deposit refund?

[joe_c7]

<p>Do I need to refund my client's wedding deposit? I require 1/2 deposit to reserve the date. She never sent back the signed contract that stated the deposit was non-refundable, but did send the check and asked that we reserve the date. Now, two months later. she is canceling her wedding and asking for a refund.</p>

[michaelmowery]

<p>The signed contract is the whole reason to have a contract isn't it? I guess you were more thrilled to get the check that you forgot to get her to send you the signed contract. </p>

[MichaelChang]

<p>Although I tend to agree with Michael's remark, there is an alternate interpretation;</p>

<p>She clearly understood the implications of sending in her check, in that:</p>

<ul>

<li>it's non-refundable; and</li>

<li>you will be under obligation to reserve the agreed upon dates.</li>

</ul>

<p>That in itself may constitute an enforceable contract because:</p>

<ol>

<li>there was meeting of the minds; you both understood the terms; and</li>

<li>there is consideration in the amount of the deposit; and</li>

<li>you reserved the dates possibly at the expense of declining other potential clients.</li>

</ol>

<p>If she didn't actually cancel her wedding but only said she did in order to obtain a refund, then you can add <a href="http://en.wikipedia.org/wiki/Bad_faith#In_law">bad faith</a> to your claim to support her possible intentional withholding of the contract signing to leave her options open to hire an alternate photographer.</p>

<p>A lot of assumptions, and I'm not a lawyer, so best to consult with a lawyer in your area.</p>

[MichaelChang]

<p>This is an interesting article that might benefit wedding photographers in their contract drafting :<br>

<a href="http://www.legalphotopro.com/2013/01/16/the-myth-of-the-non-refundable-deposit-l-law-for-photographers/">http://www.legalphotopro.com/2013/01/16/the-myth-of-the-non-refundable-deposit-l-law-for-photographers/ </a></p>

[john_h.1]

<p>Micheal's post is essentially the argument that would be made if it came down to a fight and it might work. The odds are better if those facts were undisputed. Part of and usually the main reason for having a written contract is to ensure there is no dispute of what the agreement is or that there was one. Without it there is wiggle room to claim there were other arrangements or understandings. In other words, game playing. Keeping the full retainer is going to be a struggle even if successful. Consider a 'settlement'.</p>

[BrianS1664879711]

<p>I worry about Michael's item #3: I believe in court the question of the photographer's ability to book an alternate gig for that date may cloud the issue. If the cancellation was last minute it may be cut-and-dried; if the cancellation is months ahead of time then the photographer could be accused of "not trying" and using that as an excuse to unjustifiably keep the deposit (no matter what the contract says verbatim). That is what I've seen in small claims... judge who insists on seeing a reasonable attempt from the vendor to recover from an unanticipated change of plans from flakey clients... meaning the cancellation denied the vendor of any reasonable chances of getting work for the "reserved" date. And if the photographer actually performs work on the date that was reserved and cancelled I think the argument is completely null. What say you lawyers?</p>

<p>Re: John's settlement idea: YES... settle by returning the deposit if its not a last minute cancellation. Then seek to book another job!</p>

[joe_c7]

Michaels and John, Thank you for your

thoughts on this. That article was great.

 

I was definitely leaning towards half deposit

refund. As soon as she canceled I let her

know that per my contract, the deposit is

nonrefundable but she has the entire amount

available in studio credit for a year. She has

escalated to demanding half or a full refund in

cash. She has now told me that she already

has and will continue to badmouth my

reputation in our small town and yelp. I feel

bullied into submitting to her and definitely

disappointed at myself for not having her

return the signed contract.

[joe_c7]

I was also considering having her sign a

contract that says she cannot badmouth my

business or myself if she gets part money

back.

[tony_clark]

<p>At this point, both of you have handled the situation badly. It looks like the damage has been done and if she has commented to one potential client I would not refund a penny and I would tell her so. I'm sure that you've learned the value of a well written contract, securing a signed contract with retainer (because the word deposit suggests that it's refundable) and dealing with people in a timely manner. The damage has been done and she'll be making bad comments till she's blue in the face.</p>

[alan_rockwood]

<p>I am not a lawyer, and I don't even play one on TV. However, a lawyer once told me that if there is an ambiguity in an agreement the general doctrine under the law is that the benefit of the doubt goes against the one who drafted the contract or offered the contract. That would probably be you.<br>

In the absence of a signed document things become very murky. I wouldn't be surprised, for example, if a court (in the extremely unlikely event that it would go to court) might find a presumption that she did not agree to the no-refund terms and therefore did not send the signed contract. On the other hand, they might find just the opposite.<br>

Also, there might be case law in your state that governs how verbal or implied agreements are treated. This is likely to be a little different in every state.</p>

<p>However, your main choice is whether keeping the money is worth the loss of reputation you are suffering, regardless of whether it's fair or unfair and regardless of the legal details of the case.</p>