The why we should contract.
The why. Why should we contract?
In soliciting free content for this blog, I reached out on Instagram to see if anyone had stories or questions about contracts. I have tried to address each response as they pertain to this topic.
The biggest WHY is protection. Contract protections generally apply most strictly to written contracts. However, there is always a balance to be had for drafting a contract that attempts to account for every potential circumstance (the bank loan that was around 90 pages) or merely including a general guideline to help govern the various events that do arise (the one-page contract for a piece of art).
One individual who reached out hired a newer wedding photographer. The engagement photo session went well, but the photographer did not quote her the price for the wedding until the end of the photoshoot. The bride then negotiated a lower rate based on the photographer’s lack of experience, and the photographer agreed. However, two weeks before the wedding, the photographer canceled and put the bride in a lousy place for finding a new photographer at such a late date. This might not have happened if the parties had a written contract. A contract would require the photographer to show up or, at a minimum, penalize the photographer for her failure to show up. If the replacement photographer cost more money due to the late notice, the bride could have requested damages from the original photographer for the price difference. However, without anything in writing, the photographer was off the hook, and the bride was scrambling for a replacement.
Additional things to keep in mind if you are hiring a wedding photographer, you will want to make sure to get a written contract that not only details what dates they are to show up, but also what is included for that price. Does the package you are purchasing include any videography? Does it include any print images? Does it give you the digital copies and full image release to use as you would like? Does it include a specific image count, or is it the release of all photographs? Does it include any additional photoshop or touch-ups? This list is not all of the variations, just a few to think about.
Ideally, all contracts of this sort would be in a single written document. I feel very lucky in working with my wedding photographer that I didn’t end up with nothing. We had no written contract, and I had no idea what I was getting (nor did I know what to ask for). My wedding was pre-law school, and it was such a stressful time (I mean aren’t all weddings when you are also moving, starting a new job, and planning an out of state wedding???) that I just feel lucky that our photographer knew so much more than I did. I feel like weddings are sometimes our first real dive into contracts. Okay, in Utah, where we generally marry young, I was only 22 and the only actual contracts I dealt with before my wedding were various college housing and my gym membership contracts. With weddings, you have a photographer contract, a DJ contract, a wedding cake contract, a location contract (where beware if the first Sunday of the month has a steep discount), and a florist contract. However, if you have a wedding planner, make sure you really read that contract. Had Emma and Liv read their contracts with Marion St. Claire, then maybe they could have avoided the snafu of having both weddings at the Plaza on the same day. Did anyone else think it was weird that Liv as an attorney didn’t read the contract at all and wasn’t able to work it out where Marion St. Clair had to move the other bride’s wedding day? I mean, the wedding planner agreed with Liv and Emma first to those dates before the second girl? Some movies are less fun when you find the flaws a little too quickly. Don’t get me wrong I love Kate Hudson and Anne Hathaway….
Sidebar: there is this weird doctrine of law called the statute of frauds. The Statute of Frauds says that an oral contract is unenforceable if:
- It is regarding the sale of real estate
- The contract cannot be performed in one year
- It is for the sale of goods costing more than $500 (with some exceptions)
- Contracts in consideration of marriage (prenuptial agreement)
There are a few other reasons why the Statute of Frauds would apply, but these are the most common reasons. If the oral contract is for any of the above circumstances, it is unenforceable at the onset.
Another great reason to enter a written contract is to set the boundaries for a dispute. For instance, what happens if you live in Utah, your supplier lives in Idaho? If there is no written contract, which law applies, Utah or Idaho? In these situations, there is a lengthy test to determine which law would apply, but it would be unclear at the beginning of any litigation. Written contracts will help avoid putting yourself at the mercy of litigation outside of your home state and with laws that are unfamiliar to you.
Additionally, a written contract can limit your liability. It protects you from things outside your control (hello new COVID-19 provisions), including when your company sells faulty printers that might burst into fire. I mean, if you were the manufacturer and knew about the likelihood of fires before you sold the printer, then it’s unlikely a provision limiting liability would work. Still, if you are merely the middleman, a contract might limit your responsibility even when the press obtains a copy of a video showing the printer catching on fire.
For many of us, the biggest reason we like written contracts before doing any work is knowing what the consideration (payment) will be. There is nothing worse than being at Target and finding a super cute shirt that you think is only $5.00 based on the placement on the shelf, but then when it rings up, it is suddenly $35.00 because someone put it down on the wrong shelf. A written contract just makes sure you KNOW like KNOW KNOW what you will get paid or what you will pay for the service/goods. Contracts provide clarity and allow each party room to negotiate without fear of a last-minute substitution or “up-sale.”
I could continue to list the many advantages of written contracts, but I won’t bore you with them all.