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Forum: Photographic Technique
06-24-2010, 06:26 PM
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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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Forum: Photographic Technique
06-24-2010, 07:28 AM
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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.
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Forum: Photographic Technique
06-24-2010, 06:02 AM
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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.
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Forum: Photographic Technique
06-23-2010, 02:33 PM
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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..
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Forum: Photographic Technique
06-23-2010, 05:03 AM
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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.
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Forum: Photographic Technique
06-22-2010, 10:54 AM
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this is true, you set up your standard terms to protect yourself here I disagree, regardless of size, a contract can be made enforceable, it is simply wording. if you are as hard asses about getting contracts enforced as you are about getting payments up front that is I believe this is incorrect. You don't need a judgement to sell the contrat to a collection agent, simply show the contracting party is in default. If they don't pay after a court ruling then they are in contempt of court, and you can garnishee their wages to collect the entire thing.
You keep repeating the same mistake, he did not waive a clause, during negotiation, there was mutual agreement as to the date the down payment would be made, that is all. This new date was noted, therefore it is part of the total contract. the contract is not just the paper, which is signed, but all discussions and other notes pertaining to it. It may not be good practice but what was agreed in total, including the new payment date does form "the contract".
What you mentioned in a previous mail is more relevant, that the cancellation came prior to making the down payment. This may depending upon the exact wording of the contract form termination without compendation. We can only guess because we don't have the contract wording, to know even if the contract, without downpayment was in force.
The other thing that is interesting, and I can only speculate on this, is that there was never any intent to contract out the photography. Let's just imagine a scenario here. Someone else commented that the wedding planner was not local I believe. If that planner had a "pet photographer" i.e. someone they planned to do the shots on the cheap, or perhaps a family member etc, why not enter into discussions about types of shots total number of shots, local locations etc. that an out of town planner would not know about, and then just defer things, and cancel out. You get all the ideas and locations but don't pay a cent because you never intended to go ahead with the shoot using that photographer but you took advantage of his time. This type of activity is fradulent, and you can claim. Don't believe me, Microsoft did this all the time, they would look at buying a small software firm, enter disclosure agreements to look at the software , then cancel or back out, but magically the same function and sometimes same code would up in a later release of windows. They have been sued for billions over this type of activity. it is just a bigger scale
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Forum: Photographic Technique
06-18-2010, 05:36 PM
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This is incorrect. Although the up front deposit was deferred, an agreed date was noted and recorded, therefore the contract could still valid. Mutual agreement to change the teems does not void a contract. What is not known is what specific wording is in the contract with respect to the contract coming into force. I say could still be valid because we do not know the wording. Usually this is exchange of funds.
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Forum: Photographic Technique
06-18-2010, 05:15 AM
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generally, a contract as a minimum requires 3 basic points,
1) an agreement must be reached between the contracting parties regarding service and compensation,
2) service must be performed as agreed
3) compensation for the service must be provided.
the agreement need not be written, but it is better if it is.
in your case, one could argue the hour you spent could be cost of sales determining scope of work, and not part of the contract (you have not told us the details)
You also have not specifically told us whether the contract waswith the wedding planner or the bride and groom, this is also important.
But at the end of the day, you did not perform the contracted service, and they have not paid, You need to look at your contract very carefully to see what compensation for cancellation you are entitled to. Something for everyone to remember is that contracts are not needed when everything goes well, they are need for when things do not go well. You shoulld have cancellation structured as a function of time before the wedding, because if they sign a year in advance and cancel a month later it is a different economic impact then if they cancel a month before the wedding, or the day before, or decide they don't want any prints, but demand the rights to the shots. All these need to be specifically covered.
But regardless, you spent an hour. That's all you would be entitled to, unless you can prove loss by having refused other work for the dates required because you comitted time to these clients. This would be difficult and even if you win, you would certainly gain a reputation in the busness that is undesireable. Better that the wedding planner get a reputation for over spending and cancelling contracts than you for taking clients to litigation.
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