Now picture this. Imagine you get a call from a potential client who wants to book you for her wedding photography. You billed her (on the phone) $2000 and told her she was required to make a “deposit” of $500 to secure the date. 6 weeks prior to the wedding another $1100 was due. 24 hours later, she gladly paid $500 into your personal account and looked forward to a superstar celebrity wedding photographer like you (Yes, YOU) covering her wedding. She was excited and you were excited. That was 5 months ago.
6 weeks before the chosen date, you open your email box to see a mail from your excited bride. The subject of the email was “Greetings” and you were excited that she was about to pay an additional $1100 into your account. Your heart stops beating momentarily when you opened the mail and read the first sentence:
“Dear photographer, my fiancé died 2 weeks ago and I was wondering if I could get a refund of the money I paid you since the wedding will no longer be holding”
You were shocked. She explained that the fiancé had a heart attack and did not make it. Since the wedding will no longer be holding, she wanted her money back. You decided to get advice from a photographer that had been in the business before you so you called me, Seun Akisanmi. Your $500 question was this: “Sir, if it were you, what will you do”.
I’ll start by telling you the things I wouldn’t have done. First, I wouldn’t have concluded the deal on the phone. I would have arranged for a meeting (if she were in the country) and told her to read the one-paged document of our terms and conditions. If she agreed to what was in the agreement, she (along with her fiancé if possible) would sign and I’ll give her a copy while I’ll file our copy.
In the agreement she would have read that what you consider a “deposit” is actually written as a “retainer”. The difference between the two words is that the former is refundable (since you’re just “holding” the money for her like a bank’s “fixed deposit”) while the latter is not. She would have asked me for clarification if she didn’t understand and I would have told her that the money she was paying was being used to “lock” down the date. She would have read that if for any reason under God’s planet the wedding will not hold on the chosen date, her “retainer” (of 25%) was non-refundable even if she were to ask for it one week after payment. She would have understood that because similar rules apply to other vendors she had hired to make her day joyous. She would have signed the agreement before making the payment. She would have understood our terms & conditions and I would have been happy.
Secondly, she would have paid the “retainer” into our company account instead of my personal account. I run an organization that is separate from Seun Akisanmi. For accounting purposes, the right thing to do was to have opened a corporate account where all income from the business will be deposited into.
So what will I do if I were the photographer? I would refund the “deposit” as soon as possible. Since there wasn’t a written agreement, there is a high probability that I would lose the case if the client were to sue me to court. I would only beg for a timeline to pay back the money since I wasn’t financially prudent enough not to have given her my personal account. Besides, I spent the money the day after I got it and would have to hustle to try to pay her back her deposit. I would then proceed to open a corporate account and have a written agreement (where issues like these are addressed in advance) that all clients will sign before hiring me.
That’s what I would have done. If you were the photographer in question, what will you do?
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Plan to attend the next session of Basic Course in Photography
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Wow this is some milloon dollar information I’m getting for free. Thanks Mr. Seun and God bless you real good!!!
Force Majeure literally means “greater force”. These clauses excuse a party from liability if some unforseen event beyond the control of that party prevents it from performing its obligations under the contract. Typically, force majeure clauses cover natural disasters or other “Acts of God”, war, or the failure of third parties–such as suppliers and subcontractors–to perform their obligations to the contracting party. It is important to remember that force majeure clauses are intended to excuse a party only if the failure to perform could not be avoided by the exercise of due care by that party.
When negotiating force majeure clauses, make sure that the clause applies equally to all parties to the agreement–not just the licensor. Also, it is helpful if the clause sets forth some specific examples of acts that will excuse performance under the clause, such as wars, natural disasters, and other major events that are clearly outside a party’s control. Inclusion of examples will help to make clear the parties’ intent that such clauses are not intended to apply to excuse failures to perform for reasons within the control of the parties.
the lawyer has spoken…. thanks for the insight. I wonder if Dbanj refunds money though
pls sir i knw you have talked about this before, but sir that was your old one, could you pls give us a copy of your renewed agreement, i wanna learn personally. thanks.
will do that and let you know once it is done.
Well,its a hard one and not really hard per se.I wuldve given her d agreement b4 d demise of d fiance…but on a compassionate ground,I can return d money becos its unfortunate and who knows when she s getting married again,I might be d official photographer…
it’s really a hard one. i’ll consider your advice and still use the money to secure her next wedding. thanks
I would have refunded as well due to the nature of the agreement as raised in the write-up as well the nature of the circumstance-Death; a debt we all owe. That could have happened to anyone even you reading!!!
well said. thanks. maybe i’ll just tell her we’ll use it for her next wedding or photography coverage
In a situation where by the photographer die before the date of the wedding wht will the owner do?
nice one. it helps to have a system in place or photographers that work with u to handle that
I think the best thing I would have done if I was the photographer is to put it in Written Agreement before proceeding with the bookings, so incase of situations like that the clients would have known that the money is non refundable then the deal would have been sealed after the Agreement.
true.
O ga ju! That’s some serious stuff o. Thanks for the clarification. I too am wiser now having read your article and knowing the practical difference between a retainer and a deposit. However were I to have found myself in such a situation with a client I would’ve sympathized with him/her and refunded the ‘deposit’. Cheers .
sound business advice, very useful even for non photographers.
it could be hard for the photographer especially if the money has been spent and he had missed the chance of booking another wedding for that date, but with good communication and understanding from both sides it can be sorted amicably.
Wow, some really good advice here! I look forward for your new posts! Keep up the good work! =)
Thanks