Imagine a photographer is hired to photograph a wedding but the month before the wedding is to take place, one of the clients is killed in an accident. The other client reaches out and asks for a refund of the couple’s photo deposit. The photographer checks his contract, which clearly says that under no circumstances is the deposit refundable, including force majeure circumstances. The photographer tells the client he cannot return the deposit, but would be happy to move the reservation to a different event—“perhaps your next wedding.” Shocked, the client posts on Facebook what the photographer said. The post takes off, and soon the photographer’s vendor pages on various review sites such as Yelp and TheKnot are flooded with one-star reviews and harsh comments. The photographer’s business is ruined and he decides to sue the client for defamation and pays his lawyer a visit. 

The photographer’s lawyer looks a little stunned. Yes, she tells him, the contract says that the deposit is non-refundable under all circumstances, including force majeure scenarios; under the terms of this contract, there is no obligation to return the deposit. However, she continues, a court could choose to invalidate this portion of the contract for several reasons. Impossibility, for example, is a legal doctrine and defense to breach of contract that states that when a particular condition which all parties to the contract assume would continue when the contract was signed ceases to exist, through no fault of the parties, the parties are released from their obligations. If for instance, the bride died, her presence was a “particular condition which all parties to the contract assume would continue,” and without her, the contract may be impossible to perform.

Frustration of purpose is a similar doctrine, that states that even if a contract may be technically fulfilled, circumstances have changed such that performance of the contract would produce a drastically different result than the one anticipated. The photographer offered his services for another event. While the contract may allow for a change of reservations like this, nevertheless performance of a wedding photography contract after one of the people involved died before the event took place would produce a “drastically different result” than originally intended.

It may be that the photographer has the right to keep the deposit, even aside from these potential defenses. But being a frank counselor is more than just telling someone what the law says you can do; there are many situations in which you are legally entitled to act a certain way that you nevertheless should not act. If you see someone hit by a bus on an otherwise empty street, you are (in most states) not obliged to call an ambulance. But should you walk by and do nothing? There are other rules that govern human society than the law.

Regarding the defamation, that requires that the defamatory statement be false. The lawyer asks the photographer: “Is it false that you refused to return the deposit? Is it false that you said that you would be happy to photograph the client’s ‘next wedding’? If not, then you don’t have a claim.” 

The law, and your contracts which are enforced by the law, are a kind of baseline behavioral guideline; they state the least of what you must do. Being a functional member of society means sometimes going beyond those standards. You have a legal ability to keep the deposit, but that choice has a consequence, which is the loss of your reputation and your goodwill. If you wish to keep the goodwill of your market, you must sometimes do things beyond what your contract requires; you must sometimes act with empathy. A lawyer can help you understand what you can do, under the law, but your own conscience is a far stronger tool to help understand what you should do.

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, ASH LAW LLC, at ashlawllc.com.

This article is for informational purposes only. Contact a lawyer for legal advice.