What are my obligations to these clients and what should I do to make this right?

I was a wedding photographer and began going through a divorce. I thought I
would be moving out of state so I shut down my business. I sent an e-mail to
all my clients stating that I would be moving due to the divorce, but that I
could either provide another photographer for their wedding or cancel their
contract. I offered a refund of the deposit within a year although the deposit
was technically non-refundable. I am now being attacked by these clients
who want their refund now. I’m on public assistance and have no way of
doing this yet. Help

Asked on March 12, 2017 under Business Law, Colorado

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You legally have to refund their deposits immediately:
1) A deposit may be non-refundable if the client changes his or her mind or cannot "perform" as required, but the vendor is NOT allowed to refuse to perform and keep the money. You either perform or give the money back. By refusing to perform, the *vendor* breaches the agreement; that breach by the vendor requires the return of the deposit.
2) You have already informed them of the breach and that you will not take their photos--regardless of when the wedding was scheduled, you have already "anticipatorially breached" by stating you will not take the photographs; that means your breach is now, when you declared you will not perform under the agreement. Having breached now, you have to return the money now--you don't get to keep it, for, say, a year, depriving them of their money when you've already indicated you will breach your contract. You financial hardship is your issue, not theirs; if you don't refund the money now, they can sue you for it now and will, based on what you write, win.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You legally have to refund their deposits immediately:
1) A deposit may be non-refundable if the client changes his or her mind or cannot "perform" as required, but the vendor is NOT allowed to refuse to perform and keep the money. You either perform or give the money back. By refusing to perform, the *vendor* breaches the agreement; that breach by the vendor requires the return of the deposit.
2) You have already informed them of the breach and that you will not take their photos--regardless of when the wedding was scheduled, you have already "anticipatorially breached" by stating you will not take the photographs; that means your breach is now, when you declared you will not perform under the agreement. Having breached now, you have to return the money now--you don't get to keep it, for, say, a year, depriving them of their money when you've already indicated you will breach your contract. You financial hardship is your issue, not theirs; if you don't refund the money now, they can sue you for it now and will, based on what you write, win.


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