|
Forum: Photographic Technique
06-24-2010, 08:03 AM
|
| |
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.
|
|
Forum: Photographic Technique
06-24-2010, 06:59 AM
|
| |
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.
|
|
Forum: Photographic Technique
06-23-2010, 06:07 AM
|
| |
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.
|
|
Forum: Photographic Technique
06-18-2010, 04:53 AM
|
| |
Your compensation for failure to execute was the deposit, and you waived that. In court, that won't go over well with the jurist. You could pursue, but likely at no material gain to you.
|
