Question (from Anonymous in PA):
Can I sue a wedding vendor for taking my non-refundable deposit ($90) because they closed before the wedding and didn’t tell me? But the woman pretended she just “moved locations” but she has no website and from her own LinkedIn page she said she stopped being the owner of the bakery the same month she took our deposit (and I found out she closed a week and a half before my wedding, 5 months AFTER she closed). She insists she would have made my cake but it would have probably been out of her kitchen and I spoke to her former baker, who was supposed to do our cake, and she said she violated many health codes in the shop. I would like my deposit back and the cost of filing in small claims court – ideally I would also like the difference I had to pay to get the same cakes made on such short notice by another bakery in town (same flavors/design but higher price due to time constraints). Also, two weeks before the wedding when I was trying to confirm everything she would not communicate with me which led me to finding out the website was gone and the newspaper article about the bakery shutting down. That’s when I began trying to find a new baker because she wouldn’t respond to calls and the bakery number was disconnected. A week later she texted me and asked for the design and flavors of my cake like nothing had happened, not telling me about the status of her business or the fact that her baker was no longer her employee (thus the cakes we tasted would not be the ones we would be getting even if we let her bake us a cake). I then told her because I hadn’t heard from her and I saw the bakery closed down that I hired a new bakery and I would like our deposit returned and she said it was nonrefundable and She could bake a cake.
Response (from Attorney Rob):
I think that you may have a chance at getting your deposit back because the Wedding Vendor failed to provide you with what the law calls ‘adequate assurance of performance.’
Once two parties have contracted, if facts come along that make it reasonable to assume Party B will be unable to perform, then Party A can request ‘assurance of performance.’ In other words, it’s a communication to the effect of, “Hey Buddy, haven’t heard from you in X weeks, and I just noticed in the news you were in jail. Are you going to bake my cake?” If Party B does not CONFIRM performance or assure that performance can be made, then Party A is basically discharged and the contract is kaput.
Here, once you realized that the wedding vendor was defunct (as a true business), and you called the disconnected number, I think that this was enough to kill the contract. At that point, you were probably in the right to attempt to hire someone else. The CYA text that the wedding vendor sent the following week may not cut it as a confirmation of performance.
Let’s say that there is no ‘assurance of performance’ issue. Is the wedding vendor in breach simply by (1) shutting down the commercial kitchen (2) having a different baker bake the cake? Maybe. I think that there is a pretty good argument both ways here. Did the Baker’s name appear in the contract or the receipt? Is he/she known in the city? Does the Vendor not know how to bake a cake? How do you know? Here, I believe a judge would believe that, unless there are extenuating circumstances, a cake is a cake. You didn’t contract with the individual baker, you contracted with the Vendor.
Either way, I think it is better to write a letter demanding the refund (cheaper than a lawsuit) or letting it go (even though she has been so nasty!).
Again, sorry to hear about the problems. Good luck to you!!!!
Moral of the Story: Keeping clients in the loop, and making amends when needed, helps prevent lawsuits against wedding vendors. It’s a scientific fact.