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06-23-2010, 05:03 AM   #31
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Wheatfield

don't get me wrong here, I don't disagree that there is little value to be gained at a lot of time and expense in trying to enforce the contract, my argument is simply the use of english and contract law.

Mutual agreement of a change in terms does not void a contract in the whole. That is the point I was making.

The fact that there is doubt as to whether the hours spent were part of the sales pitch or contract is enough to make anyone walk away from this issue, unless the time was actually spent after the contract signature, but again, unless there are specific terms in the contract (which we have not seen) it is hard to imagine how to re-coup these losses.

As to references to microsoft and billions, I was not refering to anything other than a practice sopme corporations have used to gain "propretiary " knowledge under false pretenses. Whether this is to get free phto shoot planning, or to steal corporate secrets, is irrelevent. It is called fradulent misrepresentation.

I can only speculate here, but if the wedding planner deliberately did this, as a minimum, a complaint to the better business bureau would be justified. The wedding planner has a business after all, and should have an interest in reputation. One that can go bad in a hurry if they make a routine pracitce of cancelling contracts.

They may (should) have insurance, which would probably be willing to pay to have it go away.

06-23-2010, 06:07 AM   #32
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QuoteOriginally posted by Lowell Goudge Quote

Mutual agreement of a change in terms does not void a contract in the whole. That is the point I was making.
I completely agree.

In this case, the contact had a prophylactic against default called a deposit. Delaying or waiving the deposit as occurred is a statement diminishing the worth of the effort going forward. The B&G or wedding planner say "we don't have the $ now", and the photographer says "I really don't require the $ now".

While deferring a deposit may be seen as good faith, this does not make it good business. It appears the deposit was made contingent on an actual moving forward with the contract in the whole.

That did not happen. The photographer declined the exact steps designed precisely to mitigate loss. It's the photographer's contract by authorship. He's the architect of not abiding by its terms to the letter with some ad hoc sidebar agreement. This makes the terms of the contact hard to enforce despite a good faith modification because the whole point of contracts is to replace sentiment (goodwill) with terms (transaction).

Lesson: If it's in the contract, always take a deposit. And cash the cheque.
06-23-2010, 01:23 PM   #33
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QuoteOriginally posted by Wheatfield Quote
This is why I don't think the OP has an enforceable contract.
That he willingly waived one of the money clauses, thereby ensuring that there has been no valuable consideration just makes the paper worth even less than a$$wipe.
There is just no way in the world he is going to make it stick for a profit.
You would probably get more traction if you said: "It's not worth pursuing", rather than unenforceable.

Enforceability is a legal definition, deciding whether or not to pursue payment is a business decision.
06-23-2010, 02:33 PM   #34
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QuoteOriginally posted by alohadave Quote
You would probably get more traction if you said: "It's not worth pursuing", rather than unenforceable.

Enforceability is a legal definition, deciding whether or not to pursue payment is a business decision.
exactly. because the determination of worth pursuing can only be made by the parrty owed money, but the legal determination can be made by lots of people..

06-23-2010, 03:05 PM   #35
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At the end of the day, it is about a deposit that was waived on a job that wasn't performed. That is where it would get dicey in small claims court. In Florida, it would go before mandatory arbitration before going to the judge. Under the circumstances, even if the case was won, I don't think it would really come out financially ahead and don't really expect a garnishement order from that type of case in some jurisdictions. Plus, there is such a thing as negative advertisement.
06-24-2010, 06:02 AM   #36
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QuoteOriginally posted by Blue Quote
At the end of the day, it is about a deposit that was waived on a job that wasn't performed. That is where it would get dicey in small claims court. In Florida, it would go before mandatory arbitration before going to the judge. Under the circumstances, even if the case was won, I don't think it would really come out financially ahead and don't really expect a garnishement order from that type of case in some jurisdictions. Plus, there is such a thing as negative advertisement.
it all comes down to things we don't know.

Amount of the deposit, are we talking 50, 100, 1000??? we don't know.
Amount of time spent, we don't know in total about this either, vague references but that is all
Lost opportunities due to refusal of work for the same time, we don't know
Additionally, we don't have the terms of the contract whith respect to how the contract is put in force. Usually you can make all the agreements you want, but the contract is put into effect by a measurable definable action. We do not know if this is the signature of the contract itself, or payment of the deposit.

All of these things need to be answered but have not been.

ALso do not make the same mistake as others, the deposit was not waived, it was deferred, there is a significant difference, and although the net effect was the same for the OP, if he said no deposit necessary, that would be different than accepting a different date for payment. I keep coming back to this point because it is very important to have the wording and understanding of this very clear.

I agree there is an impact to negative advertising, and reputation, and again this goes both ways, not just the photographer but the wedding planner. I am sure the planner makes a lot more than a photographer, and has a lot more to loose in terms of reputation.

One other point and I am not sure this has been properly answererd, is who was the contract with, the bride and groom or the wedding planner. In the origonal post, it was the wedding planner that phoned and advised "they were going to do something else" .

DId the wedding planner have the authority to cancel the contract? was the contract with the planner all along? what is the contractually acceptable form of communication, is a phone call binding in the terms of the contract?

These seem like trivial points, but as I said a lot earlier, a contract is not written in anticipation that all goes well, it is written to cover your worst nightmare, and then some.

Last edited by Lowell Goudge; 06-24-2010 at 06:07 AM.
06-24-2010, 06:59 AM   #37
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QuoteOriginally posted by Lowell Goudge Quote
it all comes down to things we don't know.

Amount of the deposit, are we talking 50, 100, 1000??? we don't know.
Amount of time spent, we don't know in total about this either, vague references but that is all
Lost opportunities due to refusal of work for the same time, we don't know
Additionally, we don't have the terms of the contract whith respect to how the contract is put in force. Usually you can make all the agreements you want, but the contract is put into effect by a measurable definable action. We do not know if this is the signature of the contract itself, or payment of the deposit.

All of these things need to be answered but have not been.

ALso do not make the same mistake as others, the deposit was not waived, it was deferred, there is a significant difference, and although the net effect was the same for the OP, if he said no deposit necessary, that would be different than accepting a different date for payment. I keep coming back to this point because it is very important to have the wording and understanding of this very clear.

I agree there is an impact to negative advertising, and reputation, and again this goes both ways, not just the photographer but the wedding planner. I am sure the planner makes a lot more than a photographer, and has a lot more to loose in terms of reputation.

One other point and I am not sure this has been properly answererd, is who was the contract with, the bride and groom or the wedding planner. In the origonal post, it was the wedding planner that phoned and advised "they were going to do something else" .

DId the wedding planner have the authority to cancel the contract? was the contract with the planner all along? what is the contractually acceptable form of communication, is a phone call binding in the terms of the contract?

These seem like trivial points, but as I said a lot earlier, a contract is not written in anticipation that all goes well, it is written to cover your worst nightmare, and then some.
The point about the deposit being waived or postponed is crucial because the author of the contract is the photographer in question and the point of any deposit is to offset partial economic loss from the contract falling through.

A deposit is not a promise, it *is* security against contractual partial non-fulfillment of the contract. He effectively rolled the deposit into the payment for services. Retroactively claiming a deferred deposit is contradictory.

By modifying the terms of the deposit, the contract's author is diminishing his own protection. This makes for a classic "two wrongs don't make a right" argument, and possibly obviates any tort here. They did not pay because he did not make them in the timely manner which defines what a deposit is by definition.

You'd have to get through this logic before any question of enforceability is addressed.
06-24-2010, 07:28 AM   #38
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QuoteOriginally posted by Aristophanes Quote
The point about the deposit being waived or postponed is crucial because the author of the contract is the photographer in question and the point of any deposit is to offset partial economic loss from the contract falling through.
no argument here
QuoteQuote:
A deposit is not a promise, it *is* security against contractual partial non-fulfillment of the contract. He effectively rolled the deposit into the payment for services. Retroactively claiming a deferred deposit is contradictory.
big problem here, he did not roll it into payment for services, but deferred payment to a different date. No where does he say that it would be upon delivery of services or lumped in with the final payment, but he specifically states the new date was noted. we are dealing with a need for very precise wording here
QuoteQuote:
By modifying the terms of the deposit, the contract's author is diminishing his own protection.
no argument here
QuoteQuote:
This makes for a classic "two wrongs don't make a right" argument, and possibly obviates any tort here. They did not pay because he did not make them in the timely manner which defines what a deposit is by definition.
not quite, again and we are all guessing here, it depends on how "the work" is defined. The contract is enforceable to cover the work spent up to the point of cancellation, at least as the facts are presented here.
QuoteQuote:

You'd have to get through this logic before any question of enforceability is addressed.
I disagree, the question of enforceable really rides in the exact wording of the contract, specifically within the contract, the action defined for the contract coming into force, and the terms specifically spelled out for cancelation.

Assuming that signature of the contract is the only thing required to put the contract in effect, and depending upon what ever local laws exist for the right to cancel agreements without compensation, and this can usually beanywhere from 24 hours to 14 days and varies based upon type of service and jurisdiction, but let's assume both these pass, then the photographer is legally due what ever costs he incurred up to the point of cancelation.

If, however there is wording that states the contract comes into force upon payment of the deposit, he has no claims at all.

The key is all in how the contract is exactly worded and we simply don't know this.

06-24-2010, 08:03 AM   #39
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QuoteOriginally posted by Lowell Goudge Quote
no argument here big problem here, he did not roll it into payment for services, but deferred payment to a different date. No where does he say that it would be upon delivery of services or lumped in with the final payment, but he specifically states the new date was noted. we are dealing with a need for very precise wording here no argument here not quite, again and we are all guessing here, it depends on how "the work" is defined. The contract is enforceable to cover the work spent up to the point of cancellation, at least as the facts are presented here.

I disagree, the question of enforceable really rides in the exact wording of the contract, specifically within the contract, the action defined for the contract coming into force, and the terms specifically spelled out for cancelation.

Assuming that signature of the contract is the only thing required to put the contract in effect, and depending upon what ever local laws exist for the right to cancel agreements without compensation, and this can usually beanywhere from 24 hours to 14 days and varies based upon type of service and jurisdiction, but let's assume both these pass, then the photographer is legally due what ever costs he incurred up to the point of cancelation.

If, however there is wording that states the contract comes into force upon payment of the deposit, he has no claims at all.

The key is all in how the contract is exactly worded and we simply don't know this.
He deferred the deposit to a different date, moving the start date of the contract and mitigating the deposit protection provisions. That's why I said effectively. Defer a deposit enough, it becomes a non-deposit. For a deposit to have the aspect of insurance, there must be effective chronology. He created a situation whereby the date of deposit collection conflicted with the willingness of the other party to go forward with his services. It is his duty as contract author to safeguard his own interests in such a way that he realizes that security is actually security. For it be so, it must behave as such. A promise of a deposit is not a deposit and may be seen legally as antecedent to the actual contract.

Understand, his legal argument is that he deferred the deposit, but that he did not mean to and still wants this cash to make up for real costs. I would question whether the contract author understands that security is, by definition, collected up-front, not after a contract falls apart. Certainly a bench jurist would question this. In this case, I fail to see tort when the photographer here is very much the author of his own misfortune.

Barring more info and jurisdiction, you are correct, we do not know enough.
06-24-2010, 06:26 PM   #40
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QuoteOriginally posted by Aristophanes Quote
He deferred the deposit to a different date, moving the start date of the contract and mitigating the deposit protection provisions. That's why I said effectively. Defer a deposit enough, it becomes a non-deposit. For a deposit to have the aspect of insurance, there must be effective chronology. He created a situation whereby the date of deposit collection conflicted with the willingness of the other party to go forward with his services. It is his duty as contract author to safeguard his own interests in such a way that he realizes that security is actually security. For it be so, it must behave as such. A promise of a deposit is not a deposit and may be seen legally as antecedent to the actual contract.

Understand, his legal argument is that he deferred the deposit, but that he did not mean to and still wants this cash to make up for real costs. I would question whether the contract author understands that security is, by definition, collected up-front, not after a contract falls apart. Certainly a bench jurist would question this. In this case, I fail to see tort when the photographer here is very much the author of his own misfortune.

Barring more info and jurisdiction, you are correct, we do not know enough.
Quite true, but it really makes an interesting discussion into contracts, and explicit wording.

This is the problem, most photographers probably don;t have the time to study the actual impact of the wording in a standard boiler plate contract that they pick up off the web, or have someone draft in 30 minutes.

A well written set of standard terms and conditions, including all definitions for default, coming into force, payment, etc, costs more money than this photographer would have made from the shoot, but in the long run, well worth it.
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