Case Study from AVVO
Question (from anonymous in Iowa):
“Getting retainer back from wedding photographer. Hello, we signed a contract with a photographer for my daughter’s wedding which required $750 retainer fee. Unfortunately 5 months before the date we had to cancel. The photographer is refusing to return the retainer fee. The contract only stated Retainer, it did not say Refundable or Non-refundable and this was never discussed in the initial conversations. He also says his lawyer says he can keep it regardless if it did not state if it was non-refundable because it is considered typical industry standard. Is this true and would I have a case if I took it to small claims court since it was never stated as non-refundable?”
Response (from Attorney Rob Schenk):
“You may be able to file a Breach of Contract action against the Wedding Photographer in Small Claims Court (or the Iowa equivalent), but I do not think that it will be too successful.
The issue will be whether the Retainer is refundable, despite the fact that there are no other explicit statements in the contract dealing with the nature of Retainer refunds.
In most states, the Court will look to the express terms of the contract, or the “Plain Meaning,” to determine the intent of the parties. Here, you would argue that the Court will NOT be able to arrive at the intent, because there is nothing there to define or explain the term “Retainer,” and consequently there is no explicit statement on whether the Retainer is refundable in the event of cancellation. In other words, the contract is ambiguous as to whether the Retainer is refundable. The Photographer will likely counter-argue that a “Retainer,” by definition, is a “fee to retain future services,” i.e., money paid in consideration of the Photographer NOT booking another wedding on your date, and as such, the Retainer is NOT refundable. I’ve seen this go either way (Iowa could do it’s own thing- I am NOT licensed in Iowa). Please note that the Court will look to the whole Contract, so it may be possible that other clauses will shed light onto the issue. For example, if there is a “Termination” or “Cancellation” clause dealing with the rights of the parties to go their separate ways.
If the Court finds that the refund policy is ambiguous, or even finds that the contingency has been completely omitted, then the Court will look to outside factors. Most states have different rules on what evidence can come in to prove intent, etc. This includes testimony on “Industry Standard” or “Trade Custom,” and to some extent, sometimes, your own testimony of what you discussed or expected. Since you have admitted that this was not discussed, you really only have an argument that in your own mind, you considered that the money would be refundable. Here, I think that the Photographer will have a great argument that not only is it industry standard to reserve his services by providing consideration in the form of Retainer, but that he can just as easily say he told you this prior. Again, I have seen this go either way (gotta love litigation).
I would highly advise sending a letter to the Photographer explaining your situation, and appeal to his sense of maintaining customer (or non-customer) satisfaction. Perhaps the Photographer would give you 50% of it back.
Moral of the Story: Your contract should be EXPLICIT when it comes to cancellation. There should be nothing ambiguous when it comes to what happens to the money in your hand should the bride cancel the day after signing of the day before the wedding.