Haggling and Bickering: The need of concrete service contracts
If you do not have a contract, you risk a client who is unsatisfied with your work and the probability that you will have to “eat” the losses you incurred while attempting to perform the job. A good contract will clearly define the boundaries of the client/photographer relationship, delineating the expectations of both parties and setting in concrete terms the obligations of each party to the contract.
Legally speaking, in order for a contract to exist, both parties must have a “meeting of the minds”. This seems simple enough. However, there are a multitude of rules, statutory laws, and court rulings that govern commercial contracts.
The dense legalese found within these regulations causes most small business owners to avoid creating contracts. Small business owners, and in particular photographers, cannot afford to be uninformed when it comes to contract law.
In an ideal world, all your contracts would be written and checked by a licensed attorney. Yet, for the small business owner, attorney’s fees can be an expensive proposition. TheLawTog realizes this and can provide you with low-cost contractual templates.
However, you should utilize caution when employing any contractual template. The most important thing to remember is to READ EVERYTHING. Templates provided by whatever source are merely a starting point. The user must tailor the document to their specific needs. Otherwise, you might end up with obligations that you did not intend to.
Of Contracts and Clients
Every client that walks through your door will fall into one of two simple categories.
- The Ideal Client
This type of client will hopefully walk through your door more often than not. The ideal client is one who is easy to work for and easier to work with. If the world contained only this type of client, then there would be no need for contracts. Unfortunately, while the bulk of your clients will probably fall into this category, the second category is the reason that contracts exist.
- The Problem Client
Every photographer and small business owner has this type of client. The problem client will never truly be satisfied with your work, no matter how excellent the end product or services you provide. If you have been in business for a while, you have probably developed a vetting procedure to cull out as many problem clients as possible.
An understandable response, these clients are time dumps. Yet, you always have to consider your bottom line, and excluding these clients will cost your business money. A well-worded contract and a good grasp of contract law will allow you to sell your services to the problem client, without having to fear that an unsatisfied client will not pay. Thus, enabling you to tap a valuable financial resource, expand your portfolio, and gain experience.
A Good Contract is a Valuable Tool for a Photographer
When your client signs your contract, it becomes infinitely easier to enforce the terms to which she has agreed to. Additionally, it gives both you and your client peace of mind, both parties know exactly what to expect from the other.
Another benefit is that a signed contract will put the full force of the law behind its terms and conditions. This will give you greater leverage and help prevent you undue headaches or agitation; even if you never enter into a courtroom, the threat of potential litigation can be a great motivator for your client to live up to her end of the bargain.
The 411 on Photography Contracts
Now that you realize how beneficial a well worded and signed contract can be to your photography business, the next question to ask is: “Where do I start?”
First and Foremost, Understand what a Contract is NOT
A contract is more than a list of rules that apply to your client. A document merely stating what each party must do does not equal a contract and does not carry the full force of the law. A document containing a promise by each party does not equal a contract. As a general rule, a court will not make a party fulfill a promise they made to another party; although, some exceptions exist.
The Formation of a Valid Contract
Simply put, a contract is an agreement between two or more parties to create a legally binding agreement. It is a promise to perform or not to perform certain actions that all parties to the contract want to be legally enforceable.
A valid contract must have an offer, acceptance, and consideration.
Offer: An offer occurs when one party, the offeror, expressly promises to be bound by the terms of the contract. An offer can be made to a specific individual or the whole world.
Acceptance: The accepting party, the offeree, accepts an offer when they answer the offer with a statement or act that unequivocally communicates to the offer or acceptance of his offer. It is important to remember two things with acceptance: (1) Silence or non-responsiveness from the offeree does not equal acceptance; and (2) acceptance of an offer based upon additional terms and conditions is, in fact, a counteroffer, not a valid acceptance of an offer.
Consideration: Consideration is the most important part of any contract. Consideration is a bargained for exchange. In the case of photography, an exchange of the photographer’s services for monetary compensation. The law requires a bargaining process referred to as “dickering”. (I will cover the topic of “dickering” in a later section of this book.)
Terms & Conditions of Photography Contracts
Now that you know what constitutes a basic, bare-bones contract, it is time to discuss the terms and conditions of a photography contract.
Terms: A term includes the bargained for consideration. It is a basic requirement of a contract, e.g. payment upon completion of services.
Conditions: A condition is a circumstance or scenario that, if it occurs, make the terms of the contract effective or ineffective. An example of this would be when a client has only partially paid on his account and you have completed the services rendered in full. Since the client did not fulfill his contractual duty, you are not contractually obligated to provide the photographs to him.
How to Construct the Best Possible Contract
Often times, the contracts themselves are dense tomes filled with legalese, worded so vaguely that no one really knows what the exact terms and conditions are. Whole books have been written on the subject of contract construction by extremely intelligent individuals. Hundreds of years of case law exist covering all manner of disputed contracts.
However, this should not intimidate you from creating a contractual relationship with your client. In truth, the best contracts are often short documents, which clearly delineate the duties of all parties to the contract and are written with plain language. Meaning, the way to construct the best possible contract is to keep the contract simple.
Sit down with your client and discuss the expectations of both parties. If you chose to use a form contract, tailor it to each specific client. This will take a little extra time but could save you thousands in future litigation.
Envision potential problems that might arise from your contract and specifically address how to deal with them in the contract. However, do not bog the contract down with so many problematic eventualities that the contract becomes long. Long contracts filled with eventualities are breeding grounds for contractual disputes. Address all the issues you see, but do it as concisely as possible.
There you have it, ladies and gentlemen! Contracts are an invaluable tool in growing and developing your business. They ensure a good relationship with your clients and help preserve your reputation. Remember, you are the architect of the service you offer; you control the contractual relationship. Be precise and concise; do not confuse quality with quantity.