Client changed date after contract signed

[chrish16]

Hi, first post here. I'm a photographer, I had a wedding booked in for September, the client phoned and said the wedding now December. Problem is, the date in question I am not available, which I told them I didn't think I was available but would check. I phoned back and said I am already booked up for the new December date but would go to the other client and see if their date is flexible, it isn't so I can't do the clients wedding in December. My contract states the deposit is non refundable, so I'm guessing as I'm not cancelling it, they don't get their deposit back? Also, the client is not answering my calls or voicemail. Should I send an official letter stating the contract is now void as they have changed the date, and I can't set up a new contract as I'm not available that day? Regards

 

[justalayman]

The contract is voided only if you or the client officially cancels the booking. Is there a clause in your contract that all requests for changes must be sent in writing ( if not you would be wise to add it in your future contracts)? Discussions about changes can lead to misunderstandings. Sometimes people believe the contract was changed when it wasn't based in a discussion.


While your contract stated the deposit is non-refundable, that doesn't mean you can't refund it if you wish to. You also would be required to mitigate your damages. That means once a contract is cancelled you must attempt to replace that client with a different one. If you can't then the deposit remains yours. If you can, you can keep only the amount of the deposit needed to make up any losses, if there are any, based on the difference in value of the original client and the new clients contracts. You would refund any overage......

Unless the retention of the deposit is specified as liquidated damages. That would mean if the client cancelled and it activated the retention clause, the deposit is considered to cover any damages you may have by them cancelling and means you could claim nothing more than that. Without a liquidated damages clause you could actually sue the cancelling client for your total amount of damages due to the cancellation. Damages are not the total amount listed in the contract price but the actual losses incurred due to the cancellation. Generically stated it would be whatever profit you would have made that day.

As to your actions now;

I would send a letter stating you are not available on the date in December and ask the client to respond with their intent whether it be to cancel the contract entirely or attempt to reschedule some other day or even remain with the current contract date. That way you have, in writing, what they want to do so you can respond and and can determine how to deal with the deposit.

If they decide to outright cancel make sure you send them notice of your intent to retain the deposit as your contract allows. Otherwise they may be expecting it be returned. People tend to get more upset if they realize later you were keeping the deposit rather than right up front.

You might also consider having your contract reviewed by an attorney. S/he can offer opinions to make any fuzzy clause clear and can help you word it to be the most enforceable and compliant with any particular laws your state may have that might affect your contract.


Edit to add;

Do not treat the contract as voided until you have an official statement from the client. It has happened too many times that a contractor has made the mistake of believing the contract had been cancelled only to hear: well, when we realized we couldn't change it we stayed with our original plans. We were quite miffed when you didn't show up as your contract required you to. See you in court for our damages.

 

[chrish16]

I had considered you last response, that they would expect me on the original date and if I didn't turn up I would be the one in the wrong.

Can I put in my letter if they don't respond with 14 days or 28 days I can take that as the contract cancelled? Or shall I wait 14 days and send another letter?

What happens if they don't respond at all?

 

[chrish16]

Hi

In the section "Limit of Liability" it does say in the unlikely event that the photographers unable to perform to the guidelines of this contract due to injury, illnss, act of God, act of terrorism, or other cause beyond the control of the COMPANY, the COMPANY will make every effort to secure a replacement. If the situation should occur and a suitable replacement is not found, responsibility and liability is limited to the return of all payments received for the EVENT(S).

As the client is changing the date, is that classed as beyond the COMPANY's control?

But in the Reservation section it seems more clear: RESERVATION: A signed contract and retainer fee are required to reserve the dates and times of the EVENT(S). If the EVENT(S) are rescheduled, postponed, or cancelled; or if there is a breach of contract by the CLIENT, the retainer fee is non-refundable and shall be liquidated damages to The COMPANY. The CLIENT shall also be responsible for payment for any of the COMPANY's materials charges incurred up to time of cancellation.

Is section "Payment Schedule" it says 20% non-refundable retainer fee is due at the time of signing the agreement. The remaining balance is payable in full one month prior to the day of the EVENT(S). In the event the CLIENT fails to remit payment as specified, the COMPANY shall have the right to immediately terminate this agreement with no further obligation, retain any monies already paid, and not attend the EVENT(S). Returned cheques will be assessed a £10 non-sufficient funds fee.

This section states the deposit is non-refundable.

 

[LdiJ]

I had considered you last response, that they would expect me on the original date and if I didn't turn up I would be the one in the wrong.

Can I put in my letter if they don't respond with 14 days or 28 days I can take that as the contract cancelled? Or shall I wait 14 days and send another letter?

What happens if they don't respond at all?

Putting in the clause that if you do not receive a response by a certain date, that you will consider the contract cancelled is acceptable. However pick a specific date, and then privately give it an extra week.

 

[justalayman]

Giving them a deadline to respond is problematic given you already have a valid contract in place. Should they not respond in any way you are in limbo.

What I would consider writing is something like this.


Per our recent discussions I am under the impression you no longer intend utilizing my services as contracted. As you can read in the contract your deposit is non-refundable. While I do not enjoy enforcing such a clause I'm sure you can understand the fact that when you cancel a contract after the deadline stated to do so within the contract it becomes very difficult to schedule a replacement client for that date. Due to that I lose money (I hate the business side of running a business sometimes).

While the refundability of the deposit is not negotiable, if I am able to schedule a replacement client for your original date I am willing to refund any portion of the deposit not required to cover losses I may experience due to any possible contract not providing me with the same benefit as yours would have. Until you officially cancel the contract in writing I must continue as the contract is still in force. If you wish to cancel the contract please provide a statement in writing to that effect as soon as possible.

Of course I am more than willing to reschedule your date to any open date I have available and would prefer that as well. I have enjoyed working with you to date and would surely enjoy providing my services to help make your special day the absolute best day possible for you. Please contact me as soon as possible so I can either attempt to schedule a replacement client for [current date of event] or know that that date is still a go for you or to try to find a date that I can be at your special event.


________

By no means am I attempting to write your letter for you (not being an attorney it would be improper for me to do so as it could be construed as practicing without a license) but am attempting to suggest what I see as important and should be included in your letter to your clients.

 

[chrish16]

The main sections in this situation I think are below. The deposit does state it is non-returnable, even if the event is rescheduled, postphond or cancelled or if the client breaches the contract. The one bit I'm not certain about in the "Limit of Liability" section is where it says the photographer is not able to perform to the guidelines of the contract due to injury, illness, act of God, act of terrorism or other cause beyond the control of the COMPANY". Would you class in the case where the client has changed the date, that I cannot perform to the contract as it is beyond my control because the client changed the date an I couldn't control that?

Sections of contract:
RESERVATION: A signed contract and retainer fee are required to reserve the dates and times of the EVENT(S). If the EVENT(S) are rescheduled, postponed, or cancelled; or if there is a breach of contract by the CLIENT, the retainer fee is non-refundable and shall be liquidated damages to The COMPANY. The CLIENT shall also be responsible for payment for any of the COMPANY's materials charges incurred up to time of cancellation.

LIMIT OF LIABILITY: In the unlikely event that the assigned photographer from the COMPANY is unable
to perform to the guidelines of this contract due to an injury, illness, act of God, act of terrorism, or other cause
beyond the control of the COMPANY, the COMPANY will make every effort to secure a replacement. If the
situation should occur and a suitable replacement is not found, responsibility and liability is limited to the return
of all payments received for the EVENT(S).

PAYMENT SCHEDULE: The aforementioned 20% non-refundable retainer fee is due at the time of signing of
agreement. The remaining balance is payable in full one month prior to the day of the EVENT(S). In the event
the CLIENT fails to remit payment as specified, the COMPANY shall have the right to immediately terminate
this agreement with no further obligation, retain any monies already paid, and not attend the EVENT(S).
Returned cheques will be assessed a £10 non-sufficient funds fee.

 

[LdiJ]

Giving them a deadline to respond is problematic given you already have a valid contract in place. Should they not respond in any way you are in limbo.

What I would consider writing is something like this.


Per our recent discussions I am under the impression you no longer intend utilizing my services as contracted. As you can read in the contract your deposit is non-refundable. While I do not enjoy enforcing such a clause I'm sure you can understand the fact that when you cancel a contract after the deadline stated to do so within the contract it becomes very difficult to schedule a replacement client for that date. Due to that I lose money (I hate the business side of running a business sometimes).

While the refundability of the deposit is not negotiable, if I am able to schedule a replacement client for your original date I am willing to refund any portion of the deposit not required to cover losses I may experience due to any possible contract not providing me with the same benefit as yours would have. Until you officially cancel the contract in writing I must continue as the contract is still in force. If you wish to cancel the contract please provide a statement in writing to that effect as soon as possible.

Of course I am more than willing to reschedule your date to any open date I have available and would prefer that as well. I have enjoyed working with you to date and would surely enjoy providing my services to help make your special day the absolute best day possible for you. Please contact me as soon as possible so I can either attempt to schedule a replacement client for [current date of event] or know that that date is still a go for you or to try to find a date that I can be at your special event.


________

By no means am I attempting to write your letter for you (not being an attorney it would be improper for me to do so as it could be construed as practicing without a license) but am attempting to suggest what I see as important and should be included in your letter to your clients.

I think that the OP should likely consult with a local attorney. Not just for this specific case but so that he also knows what the best thing to do is for the future. This WILL happen again. Maybe not often but it will happen again.

I really do not agree with your emphasis on giving someone a partial refund if he is able to reschedule the date with another client. In many, many industries a deposit in non-refundable and his contact specifically says its non-refundable therefore what is his benefit in offering such?

 

[justalayman]

I think that the OP should likely consult with a local attorney. Not just for this specific case but so that he also knows what the best thing to do is for the future. This WILL happen again. Maybe not often but it will happen again.

I really do not agree with your emphasis on giving someone a partial refund if he is able to reschedule the date with another client. In many, many industries a deposit in non-refundable and his contact specifically says its non-refundable therefore what is his benefit in offering such?

You don't agree with a partial refund? Really? Unless it is stated it is considered liquidated damages the contractor has no choice but to give a partial refund if the their losses are less than the deposit. Unless the contract is crafted such the contractor can just outright keep the deposit (and not reading the op's contract i have no way of knowing if op's contract does in fact state such) it becomes a matter of compensable damages for the contractor. There is a requirement to mitigate one's damages and the finely crafted statement I proposed allowed for that while making the client believe the contractor is being magnanimous in the offer of a partial refund.

In addition to that my statement is intended to maintain a business relationship with the client in the hopes they will use the op's services for whenever they get married.


So, the contractor can simply piss off the client and attempt to keep their money, alienating them in the process and guarantee no future business or do what is legally required and in the process making themselves look good and hopefully cause the client to recommend the contractors services to others in the future. Which would you choose to do if your busines can be greatly affected by a poor review?


And yes, if I have not recommended the op confer with an attorney to write a well crafted and enforceable contract, yes, most certainly they should do so. Regarding the matter at hand; at the moment I do not see a need to seek counsel with an attorney. Nothing has happened yet and in fact, there are no actual issues at the moment.

 

[LdiJ]

You don't agree with a partial refund? Really? Unless it is stated it is considered liquidated damages the contractor has no choice but to give a partial refund if the their losses are less than the deposit. Unless the contract is crafted such the contractor can just outright keep the deposit (and not reading the op's contract i have no way of knowing if op's contract does in fact state such) it becomes a matter of compensable damages for the contractor. There is a requirement to mitigate one's damages and the finely crafted statement I proposed allowed for that while making the client believe the contractor is being magnanimous in the offer of a partial refund.

A local attorney will be able to review his contract to see whether or not its adequate to the issue of the deposit.

In addition to that my statement is intended to maintain a business relationship with the client in the hopes they will use the op's services for whenever they get married.

They are getting married on a date that he is not available, so how is that possible?

So, the contractor can simply piss off the client and attempt to keep their money, alienating them in the process and guarantee no future business or do what is legally required and in the process making themselves look good and hopefully cause the client to recommend the contractors services to others in the future. Which would you choose to do if your busines can be greatly affected by a poor review?

I would not necessarily return a non-refundable deposit. If someone like him gets the reputation of doing that, it would encourage other clients to feel free to change/cancel/postpone, or to book before they are 100% certain of their date. Therefore there is just as much chance of harm to his business either way.

And yes, if I have not recommended the op confer with an attorney to write a well crafted and enforceable contract, yes, most certainly they should do so. Regarding the matter at hand; at the moment I do not see a need to seek counsel with an attorney. Nothing has happened yet and in fact, there are no actual issues at the moment.

The matter at hand is just a side benefit of the consultation. He will be covering two birds with one stone. He will be getting an opinion on the current issue and also finding out what changes he needs to make to his agreement to avoid problems in the future, if any.

 

[justalayman]

LdiJ;3421909]A local attorney will be able to review his contract to see whether or not its adequate to the issue of the deposit.

duh!!!!

They are getting married on a date that he is not available, so how is that possible?

are you certain? They have changed it once already. Who knows if they will change it again? If they are locked in to the photog contract but not other contracts they may find it enough persuasion to not lose the money with the photog and change the date again. December is still a considerable time from now. A lot can happen in the interim.

I would not necessarily return a non-refundable deposit. If someone like him gets the reputation of doing that, it would encourage other clients to feel free to change/cancel/postpone, or to book before they are 100% certain of their date. Therefore there is just as much chance of harm to his business either way.

just because somebody calls a deposit non-refundable, it does not mean it is legally a non-refundable deposit. You seem to be missing the matter of what a deposit is for and under what circumstances a deposit can be retained. The law generally does not simple allow a person to keep money because they said they could. It is inequitable and the law does not like inequity.

The matter at hand is just a side benefit of the consultation. He will be covering two birds with one stone. He will be getting an opinion on the current issue and also finding out what changes he needs to make to his agreement to avoid problems in the future, if any.

he is free to pay an attorney if he so chooses. If he intends on following any of your advice I would strongly recommend he do exactly that as your advice, not only is harmful to his business relationship and business in whole, S but is likely to get him sued, where he may lose. Since we have not read his contract (actually even if we had since neither of us is a licensed attorney), it is impossible to say he has a valid right to retain the deposit, especially any amount beyond actual damages incurred. If he follows my suggestions he remains in the good graces of the client and even sounds like a good guy. If he follows yours, he risks pissing off the client, unnecessarily, and risks getting bad reviews in any place this client may post reviews.

 

[LdiJ]

duh!!!!



are you certain? They have changed it once already. Who knows if they will change it again? If they are locked in to the photog contract but not other contracts they may find it enough persuasion to not lose the money with the photog and change the date again. December is still a considerable time from now. A lot can happen in the interim.



just because somebody calls a deposit non-refundable, it does not mean it is legally a non-refundable deposit. You seem to be missing the matter of what a deposit is for and under what circumstances a deposit can be retained. The law generally does not simple allow a person to keep money because they said they could. It is inequitable and the law does not like inequity.



he is free to pay an attorney if he so chooses. If he intends on following any of your advice I would strongly recommend he do exactly that as your advice, not only is harmful to his business relationship and business in whole, S but is likely to get him sued, where he may lose. Since we have not read his contract (actually even if we had since neither of us is a licensed attorney), it is impossible to say he has a valid right to retain the deposit, especially any amount beyond actual damages incurred. If he follows my suggestions he remains in the good graces of the client and even sounds like a good guy. If he follows yours, he risks pissing off the client, unnecessarily, and risks getting bad reviews in any place this client may post reviews.

Please make up your mind. On one hand you seem to be discouraging him from having an attorney review his contact, particularly the contract with these people, yet on the other hand stating that neither of us are attorneys (which is why I suggested he consult an attorney in the first place).

I will also point out that a contract, signed by both parties, is generally enforceable unless there is no consideration or unless its truly contrary to law.

 

[quincy]

Please make up your mind. On one hand you seem to be discouraging him from having an attorney review his contact, particularly the contract with these people, yet on the other hand stating that neither of us are attorneys (which is why I suggested he consult an attorney in the first place).

I will also point out that a contract, signed by both parties, is generally enforceable unless there is no consideration or unless its truly contrary to law.

I agree with the advice offered to seek assistance from a local attorney for a review of the contract terms.

I also agree with the content posted by justalayman, who appears to understand well the other issues that can come into play for a business when a client cancels a contract. Whether a contract is enforceable as written or not is not the only matter (nor necessarily the most important matter) that needs to be considered. justalayman outlined well some of these other considerations.

I agree with justalayman that discussion with the client FIRST, to clarify the customer's intent, can be done prior to contacting an attorney, and justalayman's advice to put everything in writing is smart and advised.

I see nowhere in what has been posted by justalayman that he has discouraged an attorney review. The attorney would probably advise that chrish16 take the actions suggested by justalayman anyway before withholding any deposit. There is no need to spend money on an attorney until the situation with the client is clarified.

 

[justalayman]

Please make up your mind. On one hand you seem to be discouraging him from having an attorney review his contact, particularly the contract with these people, yet on the other hand stating that neither of us are attorneys (which is why I suggested he consult an attorney in the first place).

I will also point out that a contract, signed by both parties, is generally enforceable unless there is no consideration or unless its truly contrary to law.

I did not discourage the attorney review based on his current situation. I stated I did not see a need for it at the moment. There is nothing happening that really justifies the cost, at the moment as op may end up performing services for the client. I encouraged an attorney to perfect his contract and if he follows anything you suggest. I did not change my mind. I recommended actions regarding several different matters.

as to your: a contract is generally enforceable stuff:

unless the contract is contrary to established law. That is a huge statement.


Retaining a deposit may or may not be refundable, even when it is stated so. I have stated that several times. In general (since you like to try to pin down the issue based on generalities) it is never a good idea to risk something when there is a better alternative. In the situation at hand the op might be able to continue the contract in some form with the client, unless he follows your advice. Then he is simply severing the relationship and alienating the client in the process. Not a good business model, generally.

but talk about changing your mind; in one post you say he has a right to retain the deposit (and that of course is based on what we have been given, which is not a lot nor is it verbiage from the actual contract) and now you say GENERALLY a contract is enforceable. Make up your mind.

since you like to demand I support my statements, I'll play the same game: show me where a deposit, not specified as liquidated damages, can be retained in whole when it exceeds the amount of actual damages. I'm sure there are thousands of such situation in case law. Please provide some support for your statements.

 

[not2cleverRed]

By the way, what state is this in?

justalayman's advice sounds quite reasonable.

I still don't understand why OP would ask customer B if they were flexible on their event date so that customer A could rebook. That sounds like a recipe for getting customer B irked - at least, I would be irked if I made my deposit, signed a contract, and then got a call from the photographer asking if I could change the date to accommodate another customer. I might even think I'd chosen the wrong photographer, one that might flake out on me.

I don't think OP has been a "professional" photographer for long. Perhaps OP should start lurking around some wedding forums, to get a better idea of what the standards are.