EM Fine Art, a Seattle wedding venue, recently shut down and informed wedding couples that they would not be receiving refunds for any deposits paid. The venue first claimed that it was due to fire damage, but later walked back that claim, and instead asserted that their landlord is canceling their lease. Either way, the venue is invoking the “force majeure” clause it has in its contracts with couples, saying that under the contract language, deposits are not refundable.
I don’t have an opinion on whether that’s true, or whether the couples have a valid legal argument to make in this specific case, because I simply have no idea how the contract reads and also do not know the full facts. But it did get me thinking again about force majeure clauses. I recently wrote a post about Lakeview Pavilion, a Boston-area wedding venue, and how it burned down in early April. In that post I said that couples were likely owed their deposits back. I think my initial analysis may have been wrong.
To briefly summarize the purpose of a force majeure clause, it is meant to relieve a party or parties of their contractual obligation(s) in the event of an “act of God,” i.e. tornado, flood, etc. Unfortunately, many force majeure clauses are too vague and don’t address what happens to non-refundable deposits in the case of a force majeure event. This obviously invites disagreement between wedding vendors and clients with regards to deposits.
I spent yesterday researching case law on force majeure clauses and non-refundable deposits. There were surprisingly few cases on point, and none in Washington or Massachusetts (the two states in which I am admitted to practice law). For that reason, I can’t really offer a strong opinion on how I might expect a court would resolve an instance where the force majeure clause was silent with regard to a deposit. However, the couple of federal and state cases I did find seemed to suggest that non-refundable deposits would indeed be non-refundable after a force majeure event.
Again, this doesn’t mean courts in other jurisdictions would rule the same way. The big takeaway is to make sure, whether you are a client or a vendor, to spell out exactly what happens to any deposits (or other payments already made) in the case of a force majeure event. It’s always best to avoid ambiguity in a contract rather than hope a court interprets things your way.
Apparently make-your-own cocktail bars are an emerging wedding trend. As I’ve previously touched on before, this is a potentially dangerous idea for brides and grooms (not to mention for any possible victim). Furnishing alcohol for guests to serve themselves is obviously inviting over-indulgence. Under the theory of social host liability, a couple could end up getting sued if an over-served guest leaves the wedding and gets into an accident.
Not all states impose liability on social hosts, but many do. Setting aside moral considerations, if it were me I would not even entertain the idea of a make-your-own cocktail bar without being absolutely certain of the social host liability laws of my state. The potential consequences are too serious.
I draft a lot of wedding vendor contracts, and one thing about the work that always makes me nervous is that I know that there is no such thing as a “perfect contract.” Why? Because no contract can ever anticipate every possible way a transaction can go wrong (and any contract that attempted to do so would be impractically long).
Having said that, it is an attorney’s job to try and address the obvious things that can develop into a potential problem. One way to do this is to learn from the painful experiences of other people. To that end, there are several things to be learned from the unfortunate experience of one Australian couple’s wedding.
First, the couple was told (the day of, not in advance) that their band had to stop playing at 8:30 because it was too loud, given that there were residential properties in close proximity. This should prompt couples that are considering wedding reception venues located near residential areas to ask the venue whether or not noise has ever been a problem. A couple might also consider adding contract language that addresses such concerns.
Second, the couple’s bar tab went over the previously agreed upon limit. The facts aren’t entirely clear on this point, but the lesson is obvious. A couples’ contract with the caterer/venue ought to spell out exactly what happens if the liquor bill reaches an agreed upon limit.
Finally, the venue was apparently quite chilly, and for whatever reason, the venue did not turn on the heat. This one is a perfect example of something I doubt I ever would have thought of if I was drafting a wedding venue contract. But again, I can learn from this couple’s story. Perhaps a venue contract should include language about climate control.
The larger point is that contract drafting, for an attorney or a vendor, and contract reviewing/negotiating, for a wedding couple, is in large part an exercise in imagination (this might be a compelling reason to enlist the services of an attorney with experience in such exercises). Because our imaginations are imperfect, our contracts are imperfect. But in order to get as close as we can to perfection, we should learn from others.
I read an interesting article last weekend about a new start-up, the Wedding Spot, aimed at bringing more transparency to the pricing of wedding venues. Currently, most wedding venues do not disclose on their websites the cost of booking the venue. Instead, brides have to call, email, or visit the venue in order to get such information. The Wedding Spot will allow brides to get quotes from various wedding venues according to the size of their guest lists and the services the couple desires. The benefits of such a service for engaged couples is obvious. As far as what the venues have to gain by allowing their wedding venue to be listed, the article describes is thusly:
On the venue side, we are sending them highly qualified brides who have already priced out the venue, which is a huge difference from the typical leads venues get from other wedding sites. Venue coordinators typically spend hours of their time every day responding to poor-quality leads. Wedding Spot brides have narrowed down a long list of venues and end up booking appointments at only one or two venues. On average, our venues are booking one wedding for every three appointments that we set up, which is a striking contrast to the low-single-digit conversion rates for the wedding industry.
That all makes sense. If the problem for a wedding venue is that it has to spend a bunch of time dealing with brides who can’t afford the venue, then transparency regarding wedding venue pricing seems like a sensible solution. What I don’t understand is why the venues don’t disclose their prices on their own websites. The Wedding Spot may alleviate the problem of unqualified leads, but it certainly isn’t going to come close to eliminating it. The venue is still going to be inundated by inquiries from couples who are unaware of the Wedding Spot or who for whatever reason choose not to use it. If they disclosed their prices on their websites, maybe their conversion rate for their “homegrown” leads would also approach 33%. That is a lot of wasted time eliminated. It doesn’t make sense to me.
I would be curious if any readers who work for a wedding venue have any answers.
The Lakeview Pavilion, a wedding venue outside of Boston, burned down on Saturday by a fire that started just as the wedding ceremony came to a close. Tyra and I actually shot a wedding at Lakeview last summer (a few pictures below). It was a smallish, but nice venue.
I’m sure Lakeview’s sudden demise is leaving many brides and grooms scrambling to find a new venue. This raises a couple of important legal questions. First, can affected couples get their deposits back? Without knowing the specifics of how Lakeview’s contracts with wedding couples read, I obviously can’t speak specifically to the situation at hand, but generally the law will address similar situations as follows.
There are a couple of related legal doctrines, force majeure, and impossibility–the differences between them are not worth going into here–that will generally excuse performance of both parties’ obligations to perform under a contract for a wedding venue that suddenly burns to the ground without fault of the venue. What that would typically mean for a couple whose wedding venue burned down shortly before their scheduled wedding is that they will likely be owed their money back, but they can’t pursue the venue for further damages.
This raises the second question, which is: what if a couple can’t find an alternative venue for their wedding date? Can a venue that burns down be held liable for all of the money that a couple has spent on their wedding, such as for a photographer, caterer, etc? As a general principle, no. Unless a contract specifically allows for it, the law typically does not provide for what are called consequential damages.
Where does this leave a couple with a wedding just around the corner whose venue has burnt down? Potentially it leaves them out of luck. That’s why, with the considerable price tag of modern weddings, it may be a good idea for couples to consider wedding insurance. I haven’t looked at any of the sellers of such insurance, so I don’t want to give any recommendations, but I’m sure that if you google it you will find several.