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The case I saw reported did much the same thing. However, the deposit was a very significant proportion of the contract cost.
The customer cancelled a significant time ahead of the wedding and the customer challenged it. The court took the view that the deposit was in place to compensate for time spent working up to the job and (along with further cancellation charges) were there to cover the potential profit had the job gone ahead and the photographer could not find a replacement job. The court found that because of the time between cancellation and the proposed date, the level of unreturned deposit was unreasonable because it far exceeded the potential profit (and therefore punitive) and the photographer had plenty of time to find a replacement job.
So it is all about scale and there are a lot of variables, but the defence 'it is in the contract so it is binding' does not necesarily hold and courts take a dim view of unfair contracts.
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That's why I went to a lawyer so he would have a bit more of an idea. The deposit was only a small percentage(can't remember off the top of my head). He did a bit of digging around before he wrote it and it would have gave me a year to find another job. The couple had the choice to pay in full or instalments starting when the cancellation period started. That's why, if I had got another job I would of had to pay the first couple back. It seemed pretty fair on the couple and myself, but after 30 days I didn't have to pay the deposit back, but for instance if the couple split, I would have, but if they found someone else, it would have been their choice, so I wouldn't have.
The major professional associations have standard contracts that were been written by good lawyers and have been well scrutinized by Trading Standards. Why re-invent this wheel at our own expense?
Luckily i didn't have to pay for the contract to be drawn up as it was a mate, but I can see what you mean, if its their use it.
This is worth a read Distance Selling Regulations explained
Thanks for all the replies guys, she has come back to me and said she actually signed the booking form on 30th Oct, so 30 days today for a wedding on 13th April 2013. I saw the terms and she had paid Ģ300 and the t&c's do state that cancellation would incur more charges making it up to half the amount of the photography. I have passed on a summery of all your advice and stepped clear of it as I don't want to get involved. Obviously if she sorts something out then wants to do a fresh booking with me then fine. Good points raised that might come in handy some point, cheers.
She sounds like a fruitcake. I wouldn"t take her business at all.
On an aside, we would never book a wedding without both parties being present to sign the booking form.
....and does your conscience really let you feel happy to be assisting innocent people to commit matrimony?
I am a lawyer. If you contract to purchase or supply goods or services you are bound. This may be mitigated by distance selling regulations but only in the particular circumstances in which they apply.
The problem is that shops such as M&S allow a return and refund. This has caused many people to erounesly believe that a contract may be broken without issue. It can't.
My formal legal training was limited to a module of law in my engineering degree, but I understood that a contract can only exist if both parties are fully aware of what has been agreed, or should reasonably have been aware.
Am I correct in thinking that if a merchant hasn't make a customer aware of the terms because they're printed on the back of the invoice and the customer cannot see them until after he/she has paid, then a Court may well set the contract aside in the event of a dispute?
Contracts are there to be broken. If the tog has not pointed out the terms and conditions of the contract, how can he keep the deposit? As far as the couple are concerned, there were no T & Cīs, as they did not receive them or not informed about them, which I suspect is breaking the law in the first place. She also cancelled the contract within 1 week, which I assume is a short cooling off period if the tog does not accept this. The couple are well within their rights to take the tog to a small claim court to get a full refund, as the tog is being totally unreasonable. Also, as others have previously said, go to the papers and it will cost him far more in lost bookings.
Quote: Contracts are there to be broken
Wow - music to any lawyers ears!
CB, why do you think that laws never seem to be clearly drafted? The lawyers who write our laws want to make sure their brethren have plenty of work when the inevitable arguments arise.
Contract are not "laws".
A contract can be any agreement, containing any clauses and inclusions, even a verbal one. It is incumbent on both parties to ensure they both know the conditions that bind the contract. The difficulty here is determining whether there was any misinformation or non-disclosure on either parties' part.
The photographer might claim to have referred the OP to a website or literature that contained the t&cs or even that they mentioned it in conversation and it was implied in the contract rather than stated clearly.
As I say, the difficulty is proving anything.
The other thing to look out for on Paypal is whether the money was paid for a 'service' or 'goods'. Different rules apply for each.
I think it's a bit of a con asking for such a large non-refundable deposit in the first instance, but to ask for half the cost as well seems very excessive. It does depend on the length of time till the wedding and whether the photographer has turned away any other work because of it though.
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