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Gear and Health: What Happens When They Give Out?

What are the legal ramifications when equipment problems or health issues prevent a wedding professional from performing?

"This next one is called, Does Anyone Have an IPOD?"

“This next one is called, Does Anyone Have an IPOD?”

WHAT HAPPENS IF MY STUFF DOESN’T WORK?

Many wedding professionals utilize technology. Coordinators may need their IPADS with special apps. DJs need their laptops and elaborate light set up. Photographers have those weird flash thingies. Most pros require at least some electronic equipment in order to perform. Back in the day, if something happened to a turntable or light socket, it was a quick fix. Unfortunately, we are no longer living in an analog world, and not many people are going to be able to quickly open up a laptop to fix that fried HDMI input.

So, when there’s a computer virus, a technical glitch, electrical surge, or when one component just won’t ‘talk’ to the other component, can you be liable for breach of contract?

The answer is “probably….but it depends.”

At its core, a contract is an exchange of promises. Only under limited circumstances will a court allow someone to wiggle out of their contract because of an event that makes performance of the promise impossible.

In order to claim, “It’s not my fault,” or, in legal terms, the Defense of Impracticability, or, in Star Wars terms, the Lando-Han Hyperdrive Defense, the occurrence must be unforeseeable and the risk of the occurrence cannot be assumed by either of the parties.

In reality, the Defense of Impracticability can be pretty limited because courts have found that most everything is foreseeable. For example, the closing of the Suez Canal, spikes in oil price, and global warfare have all been considered foreseeable.

I guess if you can foresee a canal closing, you can foresee your IPAD freezing up at the gig.

To avoid liability for non-assumable risks that are technically ‘foreseeable,’ the ‘Force Majeure’ clause was born. A standard Force Majuere clause in a service contract excuses performance by the parties if something happens that (a) prevents performance and (b) is beyond the reasonable control of the parties. Generally speaking, events covered by Force Majeure are weather related (tornados, floods, hurricanes, blizzards, etc.), civil unrest related (labor strikes, government shutdown, war, etc.), and utility related (power outages, shortages of a particular resource-like oil or coal, etc.).

See the pattern that’s emerging? With a Force Majeure, the threshold question will be whether the actual cause of the problem is truly out of your control. For example, a power outage affecting the entire city block will probably be considered a Force Majeure event. However, a virus on your computer that prevents your DJ song-mixing software from operating probably will not.

The difference is that you have dominion over your gear. While you could not have stopped the squirrel down the street from falling into the transformer and killing the power to the entire block, only you are in charge of the functionality of your equipment. You’re the one that can purchase anti-virus software. You’re the one that can bring a back-up. You’re the one that can choose not to use your porn-dedicated laptop for a gig.

Something like a power outage is Major League. Your gear not working is Busch League. Force Majeure clauses will generally only prevent liability for Major League problems.

Why can’t Force Majeure clauses cover all equipment failures?

Well, remember when we talked about how a contract is an exchange of promises? Without a set of concrete promises, there is no contract. When one party agrees to perform, but then says, “but only if I want to,” is that really a promise? No.

Over broad Force Majeure clauses, or any type of exculpatory clause that severely weakens the wedding pro’s promise to be at an event with working gear may actually void the contract. Great care must be exercised when drafting this type of language.

WHAT HAPPENS IF I DON’T WORK (BECAUSE I’M SICK…)?

We’re all human. Except Arnold Schwarzenegger, the jury’s still out on him. As humans, we are mortal. We succumb to the flu. We have bones that break. We have low digestive tolerance to Taco Bell. In other words, we are not machines. So, at some point, an unexpected health issue is going to interfere with performance at a gig.

Generally, when a contract requires personal performance (e.g. a DJ), and the DJ either dies or becomes so ill or injured that performance is impossible, the DJ’s obligations are excused.

Death is easy to determine. What constitutes a serious illness or injury? That’s going to depend on several factors, including the type and severity of the ailment, and the jurisdiction. Also, some courts will not excuse performance where the illness or injury is the fault of the party.

So, when the wedding pro doesn’t show up to an event either because the he/she is being a wussy, or is suffering from a severe hangover after a night of binge drinking, then the client probably has a strong claim for breach of contract.

Rather than wade through these muddy waters, event industry professionals incorporate ‘Assignment’ provisions into client contracts. A typical Assignment provision allows the wedding pro, under certain conditions, to send another person to do the job. Most often, an Assignment is utilized when the contracted wedding pro is sick or injured.

About 

Rob Schenk is one of the country’s most prominent “Wedding Lawyers,” a special designation for trial lawyers representing wedding and event industry professionals involved in business disputes and in transactional matters.
Rob was awarded Rising Star of 2015, 2016, and 2017 by Super Lawyers, an honor bestowed on only 2.5% of attorneys. Rob has previously been recognized by his colleagues with a Martindale-Hubbell’s AV Preeminent Rating. Rob is licensed to practice law in Georgia, Tennessee, Florida, California, and New York.

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