Case Study (Courtesy of AVVO)
Question (from anonymous in Minnesota):
“I paid a lady to do wedding pics 6 months before wedding I decided not to have her do them so told her to send money to me
I gave her 3months notice to cancel before wedding she said she bought a new camera with it. I told her the money went for wedding expenses and now that she’s not doing pics I need it to go to something else for wedding. Is there anything I can say or do to get a refund of my money I did not use her services?”
Response (from Attorney Rob Schenk):
“Sorry, I already bought these. Like em?”
Do you have a written contract with the photographer? That would help evaluate your answer.
In the event that there is not written contract, then the following would probably be how things will transpire.
An oral agreement can still be enforceable, but what the exact terms are will be at issue. For example, did you get an oral affirmation that what you already provided to her was a non-refundable deposit? Was it refundable? Etc.
For most contracts, if you have to postpone or cancel, the photographer is under no legal obligation to “work with you” so that you may salvage some value out of what you paid. Although it may be a good idea from a business or customer service standpoint, the photographer is only obligated to do what you have agreed to do.
By canceling the contract, the photographer will be able to argue in court that you have breached. She will be entitled to be placed in a position she would have been had you fully performed under the contract. In other words, you would owe her the value of the contract minus expenses (profit). There are a couple points in your favor.
First, she has a duty to “mitigate her damages,” meaning that she needs to make reasonable efforts to rebook that date with a comparable wedding. Three months is cutting it very, very close, and I doubt that even with the photographer’s best efforts, that she could rebook the date. If the photographer fails to do this (make reasonable attempts), then she will not be entitled to damages. If the photographer does manage to book the date (cover), you will only be on the hook for difference between the profit under you contract and the new one.
Does this photographer has 100% of the contract amount? If so, I would advise requesting that he/she return all but the profit that she would have made, or try to amend the contract for other services (baby pictures/engagement pictures/etc).
Moral of the Story: Get it in writing!!!