Maybe you put a post on social media indicating a mini sessions day or availability for a photo shoot and you make an agreement for a shoot time and cost via email or text message (or even social media message).
There is no written contract.
Then the “client” doesn’t show for a shoot time, or they show but are unhappy about the images delivered (whether the number or the length of time that it takes to edit and deliver), or they share the images in a way you are unhappy with.
If you have to break a promise or a booking agreed to via email or text, are you liable?
If someone makes a verbal promise or a promise outside of a “formal contract”, is it enforceable?
If you have been stood up by a client can you recover anything?
What can you do?
The first question to ask is whether there is a contract between you as a photographer and the client?
Contracts do not have to be in writing. (There are exceptions to this statement, which we will discuss below). While it is best practice to have a written contract, verbal contracts can be valid, and, as such, it serves to reason that email and text agreements can also be valid if they can be considered to be a contract.
The question is whether those communications created a contract?
There are three things that are required for a contract (even an implied one) to exist:
- An offer
- An acceptance of the offer
The first two are straightforward.
The third is a little more complicated – was there an exchange that had a cost discussed – “I’ll do this photoshoot on XXX day for $XXX.”
If you want to sue for breach of contract, you will need to show that a contract existed.
Do the emails or text back up your claim? Is it worth your time and energy chasing this?
You should also know that there are some contracts that need to be in writing in order to be enforced, and you need to know about those!
What Types Of Agreements Need To Be In Writing?
The following types of agreements must be in writing to be enforceable:
- Contracts for the sale of goods for the price of $500 or more, except:
- When the goods are specially manufactured goods;
- When payment or delivery of the goods has been made, and accepted; or,
- If the party against whom enforcement is sought admits in court that a contract was made;
- An agreement that, by its terms, cannot be performed within one year;
- An agreement to pay the debt of another, sometimes called a “guaranty”;
- An agreement by a debtor to pay a debt which has been discharged by bankruptcy; and,
- Commercial loan commitments by a bank, savings and loan association, or credit union for loans more than $50,000.
You will notice that this doesn’t talk about the need for a contract to be in writing for services. However, if you are delivering goods (even electronic goods) you may want to think through the necessity for a contract. Some examples where photographers may need to be aware – taking email bookings for work more than a year before the event (Wedding photographers may want to note the need for a written contract). Think through the need for a contract around albums or prints or collateral product.
Every state has its own Statute of Frauds. If the Statute of Frauds applies it will prevent one party from enforcing the terms of a contract against another party who did not agree to those terms in writing. If you plan on making verbal or non-formal contractual agreements as part of your business practices, make sure you understand the rules in your own state, or speak with an attorney. As we often share here, research and an investment in legal advice on the front end can save you time, money and reputation on the backend.
Here are a few suggestions to follow when making a verbal or non-formal contractual agreement to ensure that you are clear on what has occurred:
- Screenshot and otherwise back up all documents such as emails and text messages, quotes, faxes, and written correspondence. Even if you don’t have the terms of an agreement in writing, these documents could help you overcome the burden of proof to show that a contract did in fact exist.
- Make notes of the arrangement (at the time of the agreement) and keep them – put in day planner or customer relationship management software.
- Send a follow-up email or letter as soon as possible outlining the terms of the agreement from your perspective.
- Make sure any witnesses to the agreement make note of what was agreed – this is especially the case where the agreement was verbal.
If there is a disagreement, reach out gently with a proposal for how to rectify the situation. If it would be resolved by a rescheduling and a deposit, that might be a good start; if a payment has not been made, write a letter laying out your side of things and attach an invoice. If you are unsure of how to proceed, seek legal advice.
Better to avoid than to clean up the mess!
While verbal and non-formal contractual agreements are legal, you do well to have a written agreement in the first place! If the project has a fixed price, ask for a deposit or a percentage of the fee upfront as a standard practice. If a client is unwilling to pay a deposit, this may speak to a client’s willingness to follow through on their part to pay you for your work, or even turn up for a timeslot they have booked.
In general terms, analysts have defined e-commerce as “any transaction conducted over the Internet or through Internet access, comprising the sale, lease, license, offer or delivery of property, goods, services or information, whether or not for consideration” (UNCTAD 2002). When considering liability issues that may arise as a result of communications by email or text, photographers may benefit from taking a look at legal policies on e-commerce in the creative field more generally.
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