Help with "non-refundable" clause in contract

[SloopJimC]

What is the name of your state (only U.S. law)? New Jersey

I have an interesting question that someone can hopefully help me with. My sister was recently notified by my nephew's school district that they would be dropping him "down a level" in reading next school year (he'll be entering the sixth grade). Desperate for help, my sister went to a local private tutor and signed a contract for four weeks worth of tutoring over the summer. She pre-paid the balance of the class (about $1000) in full. A couple of days later, she decided that she no longer wants to use this particular tutor and called to ask for a refund. The tutor told her that there are no refunds and refused to giver her the money. The contract she signed clearly states, in a boxed-off portion above where she signed, that there are no refunds. She did not read the boxed-off portion before signing the contract. She has initiated a dispute process with her credit card company, which I don't think will be successful. She does not want to have to hire a lawyer for such a small amount of money, and has asked me for advice since I am a law school graduate. I do not currently practice law, however, and am not sure what to tell her. I initially thought that she breached and the tutor has a duty to mitigate. However, after thinking about it, I don't think she has breached because she has paid in full. She is merely attempting to undo her performance (I think). My question is, assuming the no-refund clause is valid and assuming the credit card company does not refund her money, what is the tutor's duty here? Can he sit back and do nothing and say that he's "ready, willing and able to perform" or does he have to attempt to mitigate damages (although I don't think he's been damaged because she's already paid him in full). Thanks in advance to anyone who is able to help.

 

[Antigone*]

What is the name of your state (only U.S. law)? New Jersey

I have an interesting question that someone can hopefully help me with. My sister was recently notified by my nephew's school district that they would be dropping him "down a level" in reading next school year (he'll be entering the sixth grade). Desperate for help, my sister went to a local private tutor and signed a contract for four weeks worth of tutoring over the summer. She pre-paid the balance of the class (about $1000) in full. A couple of days later, she decided that she no longer wants to use this particular tutor and called to ask for a refund. The tutor told her that there are no refunds and refused to giver her the money. The contract she signed clearly states, in a boxed-off portion above where she signed, that there are no refunds. She did not read the boxed-off portion before signing the contract. She has initiated a dispute process with her credit card company, which I don't think will be successful. She does not want to have to hire a lawyer for such a small amount of money, and has asked me for advice since I am a law school graduate. I do not currently practice law, however, and am not sure what to tell her. I initially thought that she breached and the tutor has a duty to mitigate. However, after thinking about it, I don't think she has breached because she has paid in full. She is merely attempting to undo her performance (I think). My question is, assuming the no-refund clause is valid and assuming the credit card company does not refund her money, what is the tutor's duty here? Can he sit back and do nothing and say that he's "ready, willing and able to perform" or does he have to attempt to mitigate damages (although I don't think he's been damaged because she's already paid him in full). Thanks in advance to anyone who is able to help.

The tutor should be prepared to tutor

 

[SloopJimC]

Antigone,

Thank you for your help, but my sister does not want him to tutor, she only wants him to refund her money. At this point she's disgusted with him, and she's already found a different tutor. According to her, he's willing to do the tutoring, just not refund her money. Since she has been pretty clear that she's not brining my nephew in, does he have to do anything now or can he simply sit back wait to see if she brings my nephew in, and if she doesn't, will his non-performance be excused?

 

[Zigner]

Antigone,

Thank you for your help, but my sister does not want him to tutor, she only wants him to refund her money.

She agreed that the charges were non-refundable. I'm sure that, at some point in your long and studied legal career, you reviewed the meaning of that phrase, didn't you?

 

[SloopJimC]

She agreed that the charges were non-refundable. I'm sure that, at some point in your long and studied legal career, you reviewed the meaning of that phrase, didn't you?

Perhaps I'm looking at this from an equitable standpoint rather than a legal one, but here's the quandary that your response presents: If my sister had paid a $100 down payment toward the cost of the course, then called and said she no longer wanted the services of the tutor, she would be in breach (or anticipatorily repudiating), which if I'm not mistaken, would trigger a duty on the tutor's part to mitigate damages (unless he's a lost volume seller, which I don't believe he is). If he were able to mitigate, she would not be liable for her breach. However, since she paid in full and did not breach, and since the contract was "non-refundable" you seem to imply he has no duty to do anything here. I'm ok with that result, but the rub, of course, is that my sister would have been in a better position had she breached, because at least then the tutor would have had to make a good faith effort to mitigate. This doesn't seem right, but maybe this is just an odd quirk in the law. Any comments?