Wedding Photography Contract

T

Tom CS

Guest
Jurisdiction
Florida
My fiancé signed a contract with a wedding photographer (in her haste to plan things), paid a $1,000 "non-refundable" deposit, and then canceled the contract precisely three weeks later. We live in Florida but are getting married in South Carolina. The wedding photographer is in South Carolina. The contract was signed in late September 2016 for a date of May 12, 2017, and lists both of our names. The contract was canceled in early October 2016 (seven months before the date that the service was to take place). The reason for canceling is probably not important, but for the sake of completeness, is simply due to finding out that a friend is available to do it; someone we know, are comfortable with, and is much less expensive to boot. My understanding of the purpose and legality of the non-refundable deposit, is to protect the photographer in the case of short notice cancelations, due to the loss of income (because of the the fact that the time slot was reserved and can not be easily re-booked), and the reality that some preparations would have been made y the photographer already. I understand that even though the full service has not taken place, the "consideration" is the reservation of the time slot. However, I don't think that us having a contract is place for only three weeks, and then cancelling it seven months in advance puts the photographer in any potential danger to lose income, or that it is likely that the time slot is still "reserved" for us, or that any preparation was done. We have asked the photographer for a return of the deposit via email (all communication was via email), explaining the logic, but have not even received a response. 1) Am my way off base in my thinking? 2) Can I sue the photographer under these circumstances with a realistic expectation of a judge siding with me? 3) Where can I sue? (Florida, perhaps, since we live here, and the contract was signed here?)
 
Non refundable is self explanatory. Read the contract. Unless it states some specific circumstances under which it is non-refundable or not, you will not be successful in bringing a suit. You can continue to appeal to the photographer and their sense of "fairness" and perhaps get a portion of your deposit back.
 
I don't think that us having a contract is place for only three weeks, and then cancelling it seven months in advance puts the photographer in any potential danger to lose income, or that it is likely that the time slot is still "reserved" for us, or that any preparation was done.

There are actually two doctrines in contract law that address that.

Generally, an aggrieved party must mitigate his damages and cannot profit from the other party's breach.

To invoke either or both of those you will have to wait until after May 12, 2017 to sue and then you will have to show that the photographer had another job that day or that he failed to mitigate.

Worse, you will have to sue in SC because that's where the photographer does business and that's where the service was arranged for. Since it's obviously convenient for you to get married in SC when you live in FL, it shouldn't be a problem for you to sue there.

The lesson here (from the school of hard knocks) is don't blithely sign contracts unless you are willing to be bound by them or accept the financial consequences or breaching them.
 
Non refundable is self explanatory. Read the contract. Unless it states some specific circumstances under which it is non-refundable or not, you will not be successful in bringing a suit. You can continue to appeal to the photographer and their sense of "fairness" and perhaps get a portion of your deposit back.
Thank you, but I don't think your answer is totally correct. A contract can say any number of things that are not enforceable, such as illegal clauses, etc. Certain aspects are commonly ruled as non-enforceable from my research, and specifically goes to the heart of my question.
 
There are actually two doctrines in contract law that address that.

Generally, an aggrieved party must mitigate his damages and cannot profit from the other party's breach.

To invoke either or both of those you will have to wait until after May 12, 2017 to sue and then you will have to show that the photographer had another job that day or that he failed to mitigate.

Worse, you will have to sue in SC because that's where the photographer does business and that's where the service was arranged for. Since it's obviously convenient for you to get married in SC when you live in FL, it shouldn't be a problem for you to sue there.

The lesson here (from the school of hard knocks) is don't blithely sign contracts unless you are willing to be bound by them or accept the financial consequences or breaching them.
Much thanks. It is certainly a lesson learned, though more for my fiancé, who signed and paid before I even reviewed. Your answer helps though, and I will wait until the date is near to attempt to determine if the photographer has booked another customer. If he has purposefully not booked other work, I suppose that will be nearly impossible to prove. Suing in South Carolina makes sense, and luckily is only a few hours away.
 
If he has purposefully not booked other work, I suppose that will be nearly impossible to prove.

You wouldn't have to prove that it was on purpose. You would only need to show that he had 7 months to fill the spot and didn't. Then the burden would shift to him to prove (with evidence) that he made reasonable attempts to mitigate but was not able to replace you through no fault of his own.

A contract can say any number of things that are not enforceable, such as illegal clauses, etc. Certain aspects are commonly ruled as non-enforceable from my research, and specifically goes to the heart of my question.

While that is all true, a non-refundable deposit fee is generally enforceable, just like early cancellation fees, liquidated damages provisions, pre-payment penalties on loans, etc.

In your case, an argument based on illegality or unconscionability of the provision is likely to fail.
 
You wouldn't have to prove that it was on purpose. You would only need to show that he had 7 months to fill the spot and didn't. Then the burden would shift to him to prove (with evidence) that he made reasonable attempts to mitigate but was not able to replace you through no fault of his own.
Interesting and illuminating. This is the route that I will take.
 
The possibility that you can sue in Florida is highly unlikely. I'm assuming when you say "where the contract was signed" means where you signed the contract, not you and the photographer. And even if both of you did sign in Florida, if you want to use the small claims court for a case, which I'm assuming @adjusterjack would be considering since the amount is only $1,000, then you're going to be stuck in a court of limited jurisdiction. That would mean you're stuck in South Carolina. And we haven't talked about enforcement of judgment either assuming you win your case in court. This is a difficult route to pursue.

You've got some choices to make. You should probably send a certified letter to the photographer first to make 100% sure you've got proof that he/she received notice of your intention to cancel / terminate the agreement. You'll need it anyway if you intend to go to court and prove that the photographer was on notice and that you attempted to settle a dispute. And remember that unless you're ready to burn your bridges you may consider using this person if the refund back is less than you thought, e.g. $250, you don't know if this person bought non-refundable plane tickets using your deposit money, etc.
 
While that is all true, a non-refundable deposit fee is generally enforceable, just like early cancellation fees, liquidated damages provisions, pre-payment penalties on loans, etc.

In your case, an argument based on illegality or unconscionability of the provision is likely to fail.

Thank you for the clarity. I initially attempted to appeal to a sense of fairness that the "non-refundable" portion was 40% of the total price of the service, which would have included 6 hours of photography, plus many hours of editing, and then prints and photos. The portion of the money deemed to be "non-refundable" seems to be unreasonable to me, when no services were provided. But perhaps not "unconscionable".
 
The possibility that you can sue in Florida is highly unlikely. I'm assuming when you say "where the contract was signed" means where you signed the contract, not you and the photographer. And even if both of you did sign in Florida, if you want to use the small claims court for a case, which I'm assuming @adjusterjack would be considering since the amount is only $1,000, then you're going to be stuck in a court of limited jurisdiction. That would mean you're stuck in South Carolina. And we haven't talked about enforcement of judgment either assuming you win your case in court. This is a difficult route to pursue.

You've got some choices to make. You should probably send a certified letter to the photographer first to make 100% sure you've got proof that he/she received notice of your intention to cancel / terminate the agreement. You'll need it anyway if you intend to go to court and prove that the photographer was on notice and that you attempted to settle a dispute. And remember that unless you're ready to burn your bridges you may consider using this person if the refund back is less than you thought, e.g. $250, you don't know if this person bought non-refundable plane tickets using your deposit money, etc.
Hello and thanks. I agree and see the logic of having to sue in South Carolina. My fiancé signed the contract in Florida (I did not sign, though the contract lists both my fiancé and I by name), but she retuned it via email to the photographer in SC. Burning a bridge is not an issue, but the comment about sending a certified letter is very helpful, and I will do that, asking that the deposit be returned and citing my reasoning why, in order to have the proof of notice that you mentioned. Perhaps I will ask that 90% be returned, which seems reasonable. I do have a response email (or my fiancé does, to be clear) acknowledging that we have canceled, but would that be enough to show that he was on notice of the cancellation? I suppose I could easily list the cancellation AND the request for deposit return in the certified letter. Due to the fact that the place of business is very near the place that the services was to be performed, I do not think that there were any initial costs related to the contract incurred by the photographer, but would be open to any negotiation, if I could only get a response of any sort.
 
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Many years ago I worked as a musician booking and playing wedding gigs. I had been performing as a musician since high school and as the keyboardist and band leader, I booked my own work, hired musicians, etc. The cost of the contract isn't just about the work performed but also regarding everything leading up to the work. This includes the cost of selling the band (speaking to your fiancee, going over details as to how we work, what we'll do, making calls to available musicians, etc.) Time is money.

I say this because I don't know how much money you should expect to get back. If he has to travel to Florida and already made calls to available assistance (lighting, etc.) then that is time on the clock too. And then there are transportation arrangements. Now while I do agree with you about fairness and returning a reasonable amount of money, you need to pick a number which will make you happy and go with it. Either you'll have a settlement or you won't and will go to court.

I mentioned the burning bridges issue because this photographer has leverage. You will need to travel hours just to go to small claims court. You may only end up with a few hundred dollars. And then you will need to pursue enforcement measures in the event the photographer doesn't hand you a check. Is it worth just using a real pro for the job? I don't know. It seems like you don't care and will use someone else regardless of cost.

Sending a certified letter or some type of communication that uses a certifiable method of delivery is important. From there I'd see how it goes. Small claims court is your option. Good luck and congratulations on your upcoming wedding. This is a small problem to have and it shouldn't ruin such a happy and wonderful time.
 
Many years ago I worked as a musician booking and playing wedding gigs. I had been performing as a musician since high school and as the keyboardist and band leader, I booked my own work, hired musicians, etc. The cost of the contract isn't just about the work performed but also regarding everything leading up to the work. This includes the cost of selling the band (speaking to your fiancee, going over details as to how we work, what we'll do, making calls to available musicians, etc.) Time is money.

I say this because I don't know how much money you should expect to get back. If he has to travel to Florida and already made calls to available assistance (lighting, etc.) then that is time on the clock too. And then there are transportation arrangements. Now while I do agree with you about fairness and returning a reasonable amount of money, you need to pick a number which will make you happy and go with it. Either you'll have a settlement or you won't and will go to court.

I mentioned the burning bridges issue because this photographer has leverage. You will need to travel hours just to go to small claims court. You may only end up with a few hundred dollars. And then you will need to pursue enforcement measures in the event the photographer doesn't hand you a check. Is it worth just using a real pro for the job? I don't know. It seems like you don't care and will use someone else regardless of cost.

Sending a certified letter or some type of communication that uses a certifiable method of delivery is important. From there I'd see how it goes. Small claims court is your option. Good luck and congratulations on your upcoming wedding. This is a small problem to have and it shouldn't ruin such a happy and wonderful time.

I do agree with your assessment of the time and costs associated before the actual services to be performed. I actually outlined this in my initial request for a return of the deposit, citing that due to the contract only being in place for three weeks and the location being so near the photographer, that I could not foresee that any time or other resources had been spent related to the contract; certainly not enough to justify retaining 40% of the contract total. I do not want to take advantage, but at this point feel that my fiancé was somewhat taken advantage of due to the circumstances. Fortunately, the friend we will be using is a professional, and her career, though she was initially unavailable due to conference conflict. We are paying her 100% of her local rate, and chose a slightly smaller package (the 6 hour package was the smallest offered by the SC photographer) for our relatively small wedding, but it is still quite a bit less, and worth having a friend do it.
Thank you all. I am not commonly a user of forums (only once before actually), as I find the answers to be inane and sarcastic typically. But this site is quite wonderful.
 
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my fiancé was somewhat taken advantage of due to the circumstances

Everybody who has ever suffered buyer's remorse says that. She could easily have said no to the contract. Nobody put a gun to her head.

Fortunately, the friend we will be using is a professional,

Great. But let me give you a word of advice. Don't rely on ONLY that one person. Make sure you have plenty of friends and relatives taking photos and videos and gather up copies after the wedding. I've read too many stories where something happens that is beyond the control of the photographer and the wedding photos and videos are lost.
 
Great advice. My wedding photographer was in a car accident and it took me 6 months to get my pictures.
 
Great. But let me give you a word of advice. Don't rely on ONLY that one person. Make sure you have plenty of friends and relatives taking photos and videos and gather up copies after the wedding. I've read too many stories where something happens that is beyond the control of the photographer and the wedding photos and videos are lost.
Noted.
 
I do not want to take advantage, but at this point feel that my fiancé was somewhat taken advantage of due to the circumstances.
"My fiancé signed a contract with a wedding photographer (in her haste to plan things)... The contract was signed in late September 2016 for a date of May 12, 2017..."

This is typically how a good attorney cross examines witnesses in court. :) Your fiancé had more than ample time to tell the photographer that she'll sign and send a deposit when you're both ready. She wasn't under some unusual pressure or duress. It's not as if the salesman showed up at your door and told you that he could only offer you the special on the spot. It's okay - we know from where you're coming. :) You feel that the photographer could and should be reasonable and send back an amount of money that settles the matter to mutual satisfaction. And as of right now you're just needing to grab his attention. I'd send a certified letter that is amicable but firm and see where that goes. I highly doubt this should be a matter to settle in court. Usually these things are settled in social media and online review sites. I'm not telling you what to do, just what I've seen. Good luck to you both.
 
Everybody who has ever suffered buyer's remorse says that. She could easily have said no to the contract. Nobody put a gun to her head.

Oh no, just when I commented that that I was very pleased with the responses. You missed my qualifier "I feel". While I certainly cannot comment on what Everybody has ever said, I do not agree with that assertion. Though it may be a common feeling (being taken advantage of), I have not experienced it myself, but see it happen to others in certain circumstances. It is, in my opinion, the reason there is as much contract law as there is. The truism offered is banal, and the remainder of the comment seems unnecessary and inflammatory.
 
"My fiancé signed a contract with a wedding photographer (in her haste to plan things)... The contract was signed in late September 2016 for a date of May 12, 2017..."

This is typically how a good attorney cross examines witnesses in court. :) Your fiancé had more than ample time to tell the photographer that she'll sign and send a deposit when you're both ready. She wasn't under some unusual pressure or duress. It's not as if the salesman showed up at your door and told you that he could only offer you the special on the spot. It's okay - we know from where you're coming. :) You feel that the photographer could and should be reasonable and send back an amount of money that settles the matter to mutual satisfaction. And as of right now you're just needing to grab his attention. I'd send a certified letter that is amicable but firm and see where that goes. I highly doubt this should be a matter to settle in court. Usually these things are settled in social media and online review sites. I'm not telling you what to do, just what I've seen. Good luck to you both.
Excellent, and yes It certainly goes back to learning a lesson is the school of hard knocks. Much of the stress and duress was self-imposed (so much to do, so little time, all needs to be perfect :) ). The advice towards the legal matter is appreciated, and I will not lose sleep over the small amount, but sometimes get very curious and my own research only took me so far. To that end, this has been quite interesting, and some seeming good suggestions in the path towards resolution. I don't want to defame a small business owner as a means to an end, as his work does seem very nice from the advertising, though a less savory acquaintance suggested doing just that via social media. At this point my frustration likely lies more in being "ignored", though that is my terrible ego rearing up.
 
I'm glad you're not taking the approach to social media before making sure you have communicated with the photographer. It's New Year's week. People might be returning from vacation. Sometimes these things slide. Do what you can to settle the matter before taking any extreme action that cannot be be undone. Once you've sent a letter that guarantees delivery, you'll be able to have more solid ground to justify the feeling that you've been ignored to an unreasonable degree. It's too bad we don't have more people here who aren't as reasonable and even-handed. I'm guessing things will work out somehow and this will be a faded, distant memory.
 
In a way it's sad how crazy things can become over wedding planning and how "everything has to be perfect" creates so much stress for people that they do things hastily or without really thinking them through and It ends up becoming more about having a "perfect" wedding than the end result of a wedding, the marriage itself.

My husband and I met in October, got engaged in December, and I pulled together a really nice little wedding that happened at the end of March. So slightly less than 6 months from first date to wedding. I did pretty much everything, including the flower arrangements and other decorations for the ceremony and the reception, but I was determined to make it something that we would remember as a fun, stress-free event. It was more about us joining our lives together and marrying our best friend than about the dress or the cake or the venue or the budget or any of the other things that people stress over when planning a wedding.

This happened 20 years ago and yes, we are still married!
 
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