Just listened to the podcast episode (with Kathryn Adams), absolutely loved it. I have one common question/scenario that I’m pretty sure wasn’t asked/answered though. A couple postpones their wedding, but one of the suppliers isn’t available on the new date that the couple chooses. Where does that supplier stand in regard to retaining the booking fee? Or anything that needs to be discussed in this situation?
Kathryn Adams from Hallet Law – and the soon the be launched “Event Law” – has a great answer and it’s all about the doctrine of privity of contract.
Any more legal questions? Ask away.
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The question is, a couple postpones their wedding, but one of the suppliers isn’t available on the new date that the couples choose. Where does that supplier stand in regards to retaining the booking fee, or anything that needs to be discussed in this situation? It was prefaced, or it was followed up with, “It’s potentially a pretty long and tricky question, but can you do a mini follow up episode?” And the answer is, “Well, yeah. I absolutely can.” It’s actually not as tricky as it sounds. The law around this question is actually very simple, but I think that it is the industry itself and also what is going on at the moment that is making it probably potentially long and tricky, but I’m going to do my best to give you guys a quick snapshot at what I do know is the answer to this.
And it all comes down to what’s called a doctrine of privity of contract. Okay, so when you enter into a contract, it is only the two parties to that contract that are bound to that contract, and they are the only parties to the terms that have the benefit to enforce the rights granted by that contract, but also, the rights to pursue something from that contract. So, when I’m asked anything that has … A whole bunch of people are trying to nab this one date and the bride and groom is unhappy with one particular supplier that can’t slot into that date, “Kathryn, what is the answer to that?” And I’ll leave the diplomatic answer of how you guys communicate that to say, for example, the bride and groom that you can’t do that date on, but in Kathryn language, “It’s too bad, so sad.”
So, bride and grooms enter into contracts with their suppliers individually. So, there’s a contract between the bride and groom and the florist, the bride and groom and the celebrant, the bride and groom and the wedding photographer. Just some examples, the only time that that doesn’t happen, is if you have appointed a particular person to coordinate. And this is for another discussion later on down the track, but we’ve actually seen people accidentally fall into that coordination role, by actually getting a lump sum from the bride and groom and then paying the different suppliers, okay. But in these instance, we’re not talking about that. In fact, at the moment, unless you are making a super duper amount of money from a couple to do that, I would not recommend that you step into that coordination role at the moment, to be paid to coordinate what’s going on.
So, let’s reverse and go. Everybody at the moment in the wedding industry is individually entering into their contracts with the bride and groom. And so we’ve got the wedding supplier, the florist, the celebrant, all individually contracting with the bride and groom. And so when the bride and groom says to the wedding photographer, “Are you free 14th of February?” Wedding photographer says, “Yes.” Says the florist, “How’s 14th of February?” Well, good luck with the florist for Valentine’s Day. But yeah, just for example purposes, “Florist are you free?” Right contract between bride and groom and them. Then they say, “Celebrant, how does 14th of February sound for you?” And celebrant says, “Ooh it’s not looking good actually. I’ve, actually had somebody in that date for a very, very long time.” Look, even just from a business ethical perspective, it doesn’t even matter if they’ve been in that date for two days.
The bottom line is, we are going to have to for the majority of our work at the moment is, first in first serve, or whoever nabs the date wins. And so celebrant says, “I can’t do that day. What do I do?” And the couple will turn around and say, “Well, we’ll have our non-refundable booking fee back.” Now reverse back into the podcast that was done in late August, 28th of August, I think it was or where I went to extensive detail about how I felt about booking fees, particularly the ones where we say are nonrefundable.
So, the bride and groom says to the celebrant, “Well, if you can’t make that date.” Sorry, I’m just going … I’ve got a beeping going on the background, podcast fail there. So they say, “Well, we want our money back. You can’t do that date.” And the celebrant has every right to turn around and say, “Well, no, hang on a minute. The contract that you and I have entered into, is completely separate to any other contract that you …” Now fair enough if you’re a wedding supplier, sorry you’re wedding photographer, your florist can postpone to this new date and those terms, conditions allow, or they’ve allowed it to happen.
“I’m not free, my contract has to stand alone and it can’t be subjective to whatever is going on around the world.” Because that’s not how privity of contract works.
There are only two parties to a contract and there are some very, very minor exceptions, but they’re certainly not the case here in this day and age with weddings at the moment, all right. It is, person seeking services, celebrant providing services, bride changing the game, celebrant not being able to play the game. Therefore, irrespective of what’s going on with the parties. And if one of those suppliers is not available, the contract between that supplier, who’s not available, has to stand alone. And if that contract says that a booking fee is nonrefundable, then that’s the case. We have to go back right to the start and go, “It’s the bride and groom changing the date.”
So, it’s the bride and groom changing the date that’s making it impossible, not the lining up of the suppliers, making it impossible. So, let me say that again. So, the problem between the bride and groom, they’re saying, “Hang on a minute, you can’t fulfill the contract on the postponed date. Therefore, that’s not my fault.” We have to reverse it and think about the contract to go, “No, no, no. The problem didn’t lie with me not fitting into your date, it lies with the change of mind initially in the contract.” And I’m sorry, but let’s go back to that and it says any time there’s a change of mind. This is, of course, if your terms say this, I’m making a big assumption that your terms and conditions are very clearly set up to allow it to be a nonrefundable booking fee.
Now, and I’m going to just quickly throw in and say nothing I give here is specific legal advice. And if you want specific legal advice, come onto my Facebook, Instagram, or wherever, you can find me in my email address. I’ll make sure that the Celebrant Institute lets you know, where I can be found. But, providing your contract allows for you to retain that booking fee, the booking fee is retained because they’ve changed their mind. That right to the booking fee in no way is negated because you can’t slot in, in amongst 15 other suppliers for a date that’s been their choosing. So, that is essentially the doctrine of privity of contract. In other words, third parties can’t interfere with a contract that exists between two people. And when we’re talking about the interference of those third parties, we’re talking about everyone around you jostling, we always have to go back to what is exactly causing the contractual dispute.
It’s not that you can’t line up with the 15 other suppliers. It’s the fact that the bride and groom is asking you for a date, that you are not available, and that we just have to always remain very clear that that is the dispute, not the wider stuff that’s going on. So, that’s the answer to that question, but I want to just say that this is going to come up and if it’s not coming up now, we are going to see this particular issue, get bigger and bigger and bigger through the late 2020, absolutely 2021, probably going into 2022, depending … And I know that sounds really grim, but what I want to do in my work in the industry going forward is to get everybody, they’ll give the ability just to negotiate this kind of stuff. But, we are going to be facing an intense period of time where everybody’s jostling for dates.
And we’re also having to deal with the fact that a lot of the dates in 2020 are already gone as well. And the part of the wedding industry that is so very unique and even to the broader event industry. But, the thing that is so unique is that it is 15 suppliers, or five, or however large your wedding is. We are all trying to get one date. And I described it with Sarah today that it is essentially like a jigsaw puzzle, and everyone wants that piece of jigsaw. And we’re all hoping that the jigsaw comes together. My advice at the moment is venues, I think you guys are going to come up as the strongest and I say that quite tongue in cheek. Because, you’re the ones copping a real hammering with some of the regulations at the moment.
But, if you are a minor supplier and when I say minor, I’m usually talking either your role in the wedding or the value of your services. But, if you are not that large chunk of money that wedding couples or parties are paying, you might be collateral damage. So, if they can’t get the venue and let’s just say, you’ve been negotiating with them, or five of you have been trying to get this date going on and they can’t get the venue. They’ll choose the venue over five other suppliers, because it’s the bigger chunk of money to lose if it all goes wrong. I hope that’s being communicated right in the podcast, but they will always go for the decision that will cost them less.
So, if they change their mind on a venue, that’s going to cost a lot of money. But, if they throw a wedding photographer or a sorry, wedding photographer is actually quite high amount, but a cake maker, or somebody else, they will throw the minor fee earner under the bus and demand their money back there, than go into a stoush with a larger … So, what I’m saying to a lot of smaller or minor players in the wedding day is to say, “Do not lock in a date with these people, unless you have some solid evidence that they’ve got the major players lined up.” Because it is, you will essentially become collateral damage. They’ll cancel on you. And then you’ve got this issue of having a day empty or you’ve got yourself just a stoush because they want their money back.
So, this is why I was actually so keen to jump on this podcast and get it out quite quickly because it is something that I am just seeing so often. And it is increasing literally by the day because of the inability for suppliers to be those jigsaw puzzles for the bride and groom. And so it’s really important to say to yourself when a client, or a bride and groom, or client is putting the heavies on you to push for dates. And there’d be ramifications if your original contract for that, you need to stay very, very clear in that your contract stands on its own. There are only ever two people involved in the contract, or two parties, and you have to play the game in accordance with them.
Is there a wider view that everyone should be nice to the brides and grooms and try and coordinate by all means? I think that the more open that everybody on a wedding day, or everybody that’s involved in contractual relationship with the bride and groom, should they work together? Absolutely. I think that the more that you openly communicate with other service providers for that day, and it doesn’t have to be in a covert way. But if you get a heads up that somebody else’s being brought in, you’re a florist and you know, that James Bond photography is being thought of, pick up the phone and go, “Hey, where are they at with this kind of booking? Where are they? How far progressed are they with you guys?” And just keep an open mind because I’m also finding yeah, that I’m hearing that florist, cake and wedding photographers being booked, but they’re saying that their venues booked, but it’s not yet.
So, I really do think there needs to be open communication, so long as your relationship with the bride and groom, there’s no restrictions there of confidentiality. But that said, though, there is comradery in an industry, but there’s also a certain privilege that comes with that. So, at the end of the day, you have to stick with what your terms say, it’s your business, it’s your brand, it’s your hard work. And just because you’ve got five other suppliers that have handed their booking fees back, that should be no way indicative of you being forced to hand yours back.