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BizAttorney
BizAttorney, Attorney
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Experience:  Over 12 years of business and legal experience.
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If my photography contract doesnt state that the retainer

Customer Question

If my photography contract doesn't state that the retainer is non-refundable, is it still non-refundable?
Submitted: 6 years ago.
Category: Legal
Expert:  BizAttorney replied 6 years ago.

Not necessarily. However, if the retainer is predicated upon the performance of the photographer, and he/she has not performed, then you may be able to get your retainer back.

 

The photographer does have the benefit of the bargain, meaning that if you made the contract and are now breaching the contract, then he/she may be entitled to still getting the profit he/she would have made.

 

Unfortunately, there are many factors and no contract is as simple as either party would believe. Look to your contract and see what happens when a party breaches the contract. It will spell out what happens and what each party gets. Good luck!

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Customer: replied 6 years ago.
The contract I signed says absolutely nothing regarding cancellation policies, nor does it label the retainer as non-refundable. In fact, other than simply labeling the 1st payment as a 'retainer' it says nothing more about a retainer. And the retainer is deducted from the package total of 1700. I have received absolutely no services yet as the wedding was not set to happen for another 7 mos. All that has happened between us if that I have made payment #1 (the retainer) and payment #2 (which she has agreed to refund). The photographer told me via email that simply labeling it as a retainer vs. a deposit entiltes her to keep it if either of us cancels, but it says no such thing in the contract. Since the 'retainer' is $577, I am willing to pursue the matter with the small claims court if there's a chance I could recover even some of the money. I had told her I would be happy to negotiate a percentage she could keep for her trouble, and I am cancelling with her 7 mos prior to the wedding so I am giving her ample time to book another wedding.
Expert:  BizAttorney replied 6 years ago.

If the contract doesn't set forth the difference between a retainer and a deposit, then she is not entitled to keep it. She drafted the contract so any ambiguity is construed against her, meaning that if something is unclear, then it goes in your favor.

 

A retainer is a pool of money that one can draw on after services have been provided. If no services have been provided, then they are not entitled to draw from the retainer. The only problem you may run in to is that if the photographer shows evidence of any preparation or work, then she will be able to keep the sums for the retainer.

 

If she really has done nothing, then you should file a small claims action in your county court as you mentioned.

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