deposit vs. retainer

[stacyreeves]

I was discussing this with several photographers at Imaging USA and I was surprised to learn that in most states, anything labeled a "deposit" HAS to be refunded (less damages, a la security deposits), even when it is listed as "non-refundable." A retainer, on the other hand, is legally considered non-refundable. One of the photogs I met said she had two friends who had been taken to court and lost their wedding deposits because they were called "deposits" not "retainers" in the contract. I have a hard time believing that would stand up in court, especially if the client signed a contract that clearly stated it was non-refundable, but she swears it's true, and other people I talked to confirmed it. Has anyone looked into this or had any problems with it?

[photobykim]

Stacy, I have actually seen this mentioned a couple times here on the forum. might be able to do a search on it and see what comes up.

[stacyreeves]

I did and I didn't really find much.. maybe I just didn't look hard enough

[photobykim]

Stacy you probably did lol, I never can seem to find what i'm looking for when I search. it's all in getting the wording right and being able to find it and I can't manage to do that.

it's on my list of things to do is change the wording, not really to hard and if it saves my butt at a later date, then I'm all for that. you know?

[PIC]

Deposit is implied refundable to some or all iff not expressly stated.
But it depends on whats written in contract and how court judges.
Best to put the exact conditions in contract - inc which are refundable, which are not,
and which are transferable.
The term retainer is implied non refundable.
Most photogs are not keenly aware of small word differences in a court of law.
Another Example ... will and shall.

[CobyPhoto]

Stacy,

My older brother is a lawyer and he advised me on the wording of my contracts. Retainer is the BEST, most loop hole free wording to use. Deposits can be deemed refundable, IF no service has transpired or happend. So if a judge feels like it, since you really didn't do any service or work, can make you pay a deposit back, when a retainer is just that: a fee to retain a service or services for a specified date or time etc. If you then state in your contract that the retainer is non-refundable, guess what, it is non-refundable.

Additional: This is pretty simplified, but it gives you the right idea of the situtation. According to my bro, there is even times when a deposit can be considered non-refundable, but a large portion of that eventuality is at a judges discretion!

[LoungeLizard]

What Coby said...

[Wes]

*Note to self.... go home and revise contract wording.

[ndsimm]

that's one of the reasons I changed my contract. I know of two other photographers who lost in court for the same reason

[photosbysergio]

Great info. Thanks for asking Stacy.

[HotHolly]

Lawyer told us the same deal...ours states "retainer."

[Stephen H]

One thing I run across in construction contracts is that apparently a "penalty" is not legally enforceable. That is, a contract is supposed to relate to an exchange of value, and one person paying but not getting anything for it is considered an unenforcable contract. So the contracts always specify "liquidated damages" rather than penalties.

Anyone remember the Contract Skit from Marx Brothers? Including the Sanity Clause?

[CobyPhoto]

Any time you need a contract to be legally binding, it is just a good thing to have a lawyer to look at it. I have a background in commercial real estate and know contracts, but there always seems to be another little loop hole that needs closing. Ask a lawyer to be sure!!

[ndsimm]

Originally Posted by Stephen H

One thing I run across in construction contracts is that apparently a "penalty" is not legally enforceable. That is, a contract is supposed to relate to an exchange of value, and one person paying but not getting anything for it is considered an unenforcable contract. So the contracts always specify "liquidated damages" rather than penalties.

Anyone remember the Contract Skit from Marx Brothers? Including the Sanity Clause?

you mean this one??
http://www.searchlores.org/contract.html

[stacyreeves]

You guys are so helpful :)

So what's the dif between will and shall?

And more importantly, am I going to live through my drive from SA to Dallas tomorrow??