Question (from anonymous in Florida):
“Canceling on a wedding photographer. Are we in the right?: We booked our wedding photography with a company ran by a Husband and Wife. There was no contract and we paid the $1000 in full in good faith. It is now 3.5 months until the wedding and the Couple has divorced. The company no longer offers photography; the Husband has relocated cities and changed professions. They assured us that they would still be able to shoot our wedding and that the divorce would not be a factor. We have strong reason to believe that this is not the case and cannot afford to risk our big day with such an uncertainty. We are going to go with another company and demand a 90% refund. Is this reasonable? And what steps should we take if they refuse to repay us? Payment was made with a credit card and they have not provided us a single bit of service
Response (from Attorney Rob):
This is an excellent, well thought out question. Thank you.
You do have a contract. This couple promised to make themselves available on a specific date to take professional photographs of your wedding day. In exchange, you promised to pay them $1000 up front.
Should they have walked up to you 3.5 months prior to the wedding to tell you that they do not intend to go through with their promise, they would be in breach. Likewise, should you tell them that you do not want them to shoot the wedding and that you have hired another company, you would be in breach. But we’ll return to that in a moment.
Here, you state that the couple is divorced and that the husband is in another city doing something other than photography. Where a party to a contract exhibits behavior that would give the other party concern that performance is in jeopardy, the aggrieved party (you) can seek “adequate reassurance,” meaning confirmation that they are ready, willing, and able to go through with the promise. Should there be no affirmation, then that party is in breach and the aggrieved party may seek relief.
Here, I think there is no doubt that performance by the photographer was in doubt and you were in your right to demand assurance. However, it seems that you received confirmation from the photograpgher that, despite the rumors, they still intend on performing. You say you have strong reason to doubt this? What is it? Did you make this known to the photographers? They must be given a chance to affirm and perform.
Ok, so let’s say that you go through with firing the couple and going with someone else, are you entitled to a refund? I would say that, since you would be in breach, you would be liable only for the value of the photographers bargain (profit). The law calls this expectation damages. Not sure what expenses these guys would have, but it might not be that much. In other words, the profit margin off this is high and thus, so would be their expectation damages.
The problem here is that even if you knew what you were legally entitled to (which really, you would only know after it is proven at trial), the couple already has your money. They’re in the catbird seat. You would have to sue and collect to get it.
So, you catch more flies with honey. You might try and nicely request 90% back, but they would be under no real legal obligation to do so. Try to negotiate a non-disparagement clause with a release (feasible if the wife still shoots in that area). Lots of attorneys provide free or cheap consultations, definitely use avvo to find one in your area
I’m sorry that you have found yourself in this situation, and I wish you the best of luck.
Moral of the Story: While these wedding photographers were smart to get their money up front, working without a contract is like taking on Darth Vader without a lightsaber….or any ability in the Force.