Contract law

[DoctorDread]

I'm a wedding photographer. I run a limited company of which I'm some director. I worked with my now ex partner on bookings (he was self employed and invoiced me. Not an employee). Sometimes he was lead, sometimes I was. We have now separated. I have a booking in August for a couple (friends with ex). They want to continue working with ex as lead photographer. I have said that is fine but as he no longer works with me their contract will be null and void.

They are saying that until he gives them new t&cs I am still liable for their contract. I will be seeking detailed legal advice ASAP but I want to know

A) do I have grounds to claim repudiatry breach of contract bearing in mind I've said he no longer works represents the business, and that he's in breach on contract with me (for withholding client fees and keeping them for himself) and therefore if they choose to go with him, knowing this they are doing so willingly knowing he could let them down (they haven't been able to get in touch with him). I have offered to shoot the job myself under the same terms.
B) can I refund their deposit and cancel their contract without penalty and draw the matter to a close?

Does your contract name him as being provided by the company for this event? Or is it purely a contract with the company to provide photography?

How would he withhold fees? Your contract is with them, not him, presumably, so they are liable for any fees due to you.

Whether you can refund and cancel depends on the terms in the contract- is there provision for you to do this?

Contract states:

"Photographer: Your contract is with xxxxxxxx which is the trading name of We Xxxxxxxx Ltd and NOT with any specific individual. Under normal circumstances, the individual who undertakes your test-shoot will act as Lead Photographer, and will be attended by a 2nd Photographer of his/her choice. In the event that the Client’s preferred Lead Photographer is not available, the Company retains the right to offer and/or supply an alternative Photographer of equal skill and capability either from within the Company or via a trusted industry colleague. Should the Client not wish to accept these alternative arrangements and/or wishes to cancel the contract under these circumstances it shall be accepted by the Client that any deposits or payments already paid are non-refundable."

They have paid a deposit.

They wish to use ex. This is fine. I have said they can do that but as he is no longer a representative of my business it doesn't come under my contract. He has form for letting clients down and my concern is that he won't turn up or will do a deliberately bad job to cause me a problem (he has already tried this).

Well the photographer who did their test is no longer available through your company and you have the right to fulfil the contract with an alternative, so if they aren’t happy and want to cancel they forfeit their deposit.

Thanks flowery. That's what I was hoping. I'm contacting a solicitor Monday but ex has caused no end of problems and is most definitely NOT a trusted industry colleague.

Agree with flowery. You have to fulfil the contract but you don't have to supply your ex as lead photographer. If they want him they will have to cancel their contract with you, in which case you can keep their deposit. You can refund their deposit if you want but you don't have to.

I would suggest not engaging at all in discussions about who they do want, and limiting discussions only to the contract between the two parties, your willingness to fulfil that contract and their options should they wish to cancel.

If they don’t want to continue using your company under the terms they signed up to, it’s really irrelevant who they do choose to use.

Yes I agree. His last aggressive text said something along the lines of 'you can get all the advice you like, I won't relinquish you from the contract until I'm good and ready' or words to that effect. In response to my final email saying I was not prepared to comment further until I'd received legal advice

The client said that? Well as long as they follow the termination provisions in the contract that’s fine. Your job is just to be clear that the photographer the company will provide on that day will be you. What they do with that information, whether they terminate and lose deposit or go ahead with you, is entirely up to them.

They don't need to release you from the contract as you have stated you are happy to go ahead. They can't unilaterally add new terms that are specifically against the original contract and then hold you to them. You have clearly covered the point precisely in the existing contract and you've explained why it's not possible to be flexible so I'm not sure what they hope you will do. They don't even have a reasonable negotiating position based on goodwill.
I suspect there's a lot of external things caught up in this situation and i think as pp have said only look at the contract and discuss based on that, then leave the decision on their hands.

Thanks everyone. Solicitor appt booked

Update

Got legal advice (via my insurer)

Sent a sensible message outlining my obligations and listing his options.

Apparently now he hasn't seen t&cs, he didn't know about my ex's status within the business and will be bringing a claim to get his deposit back!

He's an insurance broker. He told me he had a contract to use for his wedding insurer should he need it. The contract his fiancé signed (contract states they're both liable) had the t&cs on.

I suspect it's all bullshit and cooked up between him And ex. If I can prove that they're colluding, that's bad for both of them as ex is the subject of two restraining orders and a criminal conviction of harassment!

Any wise words!??

I've done nothing other than suggest he forwards the contract they both entered into so we can resolve the matter.

His fiancés failure to read a contract she signed is not your problem. He isn't bound by the contract if he didn't sign it even if his name is on it but she is so you should be talking to her as the person in contract with you.

Forward a copy of the contract she signed which includes the terms and conditions and state that this is the contact that she is bound by the terms to which she agreed and you await their decision as to how they wish to proceed.

Terms on the contract state that they are both liable

A person can't be bound by a contract they didn't sign, it doesn't matter whose name is put on it, regardless of what your contract says. If you want both parties to be bound in the future they both need to sign.

A person can't be bound by a contract they didn't sign

Yes they can. Happens all the time.

If both parties have behaved as though there is a contract there is a binding contract. It would be a useful precaution for the OP to get both parties to sign the contract but in this case the husband is relying on the existence of the contract as he wants to hold the OP to it, so it clearly exists. As for the terms around substitution, the contract is with a business, not an individual. Unless there is any agreement to the contrary (which there isn't), that means the business can send whoever they want to fulfil the contract.