Need lawyer's advice RE: Catering Contract

[Razor Roman]

My fiancee and I had to change the date of our wedding. We originally booked it for 10/2 of this year, and had to move it to 9/17/05 - the hall we originally booked was not available for this date.

We called to cancel today and the guy is trying to force us to pay for 50% of the contract. With no services rendered - he is pointing to the following clause in the contract:

"IN THE EVENT OF DEFAULT BY THE LESSEE, HE LESSEE SHALL BE RESPONSIBLE FOR REASONABLE LEGAL FEES AND COLLECTION COSTS IN ADDITION TO FIFTY PERCENT OF THE TOTAL CONTRACT PRICE. THE PARTIES AGREE THAT BECAUSE OF THE PECUILAR NATURE OF THE SERVICES BEING RENDERED, THAT IT IS IMPOSSIBLE TO PROVE THE AMOUNT OF DAMAGES INCURRED BY (NAME OF FACILITY) AS A RESULT OF THE LESEE'S DEFAULT. THEREFORE BOTH PARTIES AGREE THAT THE SUM OF FIFTY PERCENT OF THE CONTRACTED PRICE PLUS FEE AND COSTS IS A FAIR AND REASONABLE ESTIMATE OF THE DAMAGES INCURRED BY (HALL) AND IS HEREIN FIXED AS LIQUIDATED DAMAGES. THE LESSEE AGREES TO PAY SAID MONIES TO (HALL) ON OR BEFORE SIX WEEKS PRIOR TO THE SCHEDULED DATE OF THE FUNCTION"

Now, we're not trying to get out of paying something we legitimately owe, but 7,500 dollars is more money than we are putting down on the house we are trying to buy - so we're not giving it up unless necessary. The guy we talked to (the owner) was also a real jerk, to the point where if our new date were miraculously available we probably wouldn't want to have our wedding there any more anyway. And they could still book this room for another event and make even more money - and supply us with NOTHING.

He is insisting that "default" and cancel mean the same thing. The term "cancel" and "cancellation" are used several other times in this contract - but not in this clause. Nowhere does it say "if you cancel, this happens..."

Does anyone think this is worth trying to fight? Maybe even just for a reduced number. Heck, I'd even settle for paying him 7,500 if he drops off 7,500 dollars worth of food at my house. I'd eat some and donate the rest to a homeless shelter or soup kitchen for all I care.

And if anyone is thinking about having a wedding in Central NJ and wants to know where not to go, drop me a line.

 

[Hillbeans]

I hate to say this, but a wedding scheduled for 10/2 of this year that you're canceling with 5 months to go will have a slim chance of being booked. I think you are out the money. Other people may have wanted that day and passed because you had it booked. October weddings in NJ are now more popular than any other month. I live in NJ and have a few friends who married in October at top dollar.

 

[Razor Roman]

I understand that, and specifically asked the guy before I dug out my contract "Is this because we are so close to the date?" and he said "No, it's because of what is in your contract."

Other places that we've booked specifically say "If you cancel or change your date and we can not rebook you are responsible for (all or a percentage) of the charges."

This contract did not say that.

And like I said, if I have to pay the money, I'll pay it. Just don't want to pay it (or all of it) if I don't have to, especially since I am getting nothing in return -

 

[ScarlettO]

But why are changing the date in the first place? Keep the original date and save some $$$.

 

[Hillbeans]

Best case scenario, if you can help find a bride for that day, maybe he'll reconsider?

I know that's a longshot, however it's possible. Perhaps you can call some local wedding planners and beg them to find someone to fill in your slot.

It also may be an idea to take out an ad in the newspaper. Hey, you never know. For $7500, it'd be worth some work on your end to try and get someone into that slot. Maybe you can offer a "signing" bonus of a few hundred dollars.

 

[Razor Roman]

We already got every other vendor changed, and when we first called them they didn't mention us paying 50% if we cancelled.

My fiancee was able to get a date in the Princeton University chapel, where she went to school, and it is her dream. I wouldnt have wanted to take that away from her. And like I said, based on how much of a JERK this guy was to us on the phone, immediately going on the defensive like we were trying to screw him, I don't even want to see this man on my wedding day.

 

[jkovick]

Unfortunately, I think you are stuck. " Default" is, in legal terms, the same thing as not honoring a contract. So in essence, by canceling you are in default and owe him the $$.

Sorry, I hope that he will be willing to work something out with you. Good luck.

 

[Razor Roman]

Originally posted by jkovick
Unfortunately, I think you are stuck. " Default" is, in legal terms, the same thing as not honoring a contract. So in essence, by canceling you are in default and owe him the $$.

That's what I was wondering - in our regular dictionaries & thesauruses Default and Cancel were not synonyms like he is trying to insist they are - so I wasn't sure where we stood legally.
We are going to have our lawyer take a quick look at it too, to see where we stand.

 

[Razor Roman]

Originally posted by Hillbeans
Best case scenario, if you can help find a bride for that day, maybe he'll reconsider?

I know that's a longshot, however it's possible. Perhaps you can call some local wedding planners and beg them to find someone to fill in your slot.

It also may be an idea to take out an ad in the newspaper. Hey, you never know. For $7500, it'd be worth some work on your end to try and get someone into that slot. Maybe you can offer a "signing" bonus of a few hundred dollars.

I'd definately be amenable to that too, but this guy was ADAMANT about taking our money no matter what. In fact he said that even if we decided we wanted to have our party there on the same date we'd need to give him another security deposit because we were such a high risk of cancelling!

 

[Briar Rose 7457]

ok, it's been a number of years since I practiced law in NJ, and I haven't read your entire contract.

but a "default" means you've failed to fulfill the terms of your contract. you can't be "in default" until you're required to do something. at the moment you're not "in default" because you haven't been required to perform under the contract. so at the moment you don't owe him anything. yet. you need to read the rest of the contract.

the "default" provision protects his profit. the caterer will incur some expenses in preparing for your event as well. the default clause covers his investment and profit.

incidentally, the food served at the party is the least of his costs. his overhead, staffing, etc. cost a lot more than the food he'll serve at your party. I know your remark about "$7500 of food" was facetious, but truly unrealistic.

hillbeans, I had three girlfriends who got married here in NY and booked their halls with less than 6 months to go befor the wedding. they were ecstatic to find cancellations. my daughter went to several bar and bat mitzvahs last year where the hall was booked within a few weeks of the party -- another caterer had gone out of business, leaving the customers with no place to hold their event.

 

[Razor Roman]

I know that food is the least of the costs - this was a full wedding French service, 2 bars, waiters, etc. He doesn't have to pay these people anything if they don't work that night. The only thing he seems to have me on that he might have had another party that night.

PS: Thanks for the legal advice in spite of our obviously different political views!

 

[Briar Rose 7457]

there's also a "mitigation of damages" issue -- if he can book another party, but doesn't, can he expect you to pay for the "default"?

 

[Hillbeans]

Originally posted by Briar Rose 7457
hillbeans, I had three girlfriends who got married here in NY and booked their halls with less than 6 months to go befor the wedding. they were ecstatic to find cancellations. my daughter went to several bar and bat mitzvahs last year where the hall was booked within a few weeks of the party -- another caterer had gone out of business, leaving the customers with no place to hold their event.

I'm sure they would be ecstatic to find a place with that little time. It does sound like the OP is having a very high end wedding, and I don't know of many weddings in that price range booked with less than 6 months. The first weekend in October is no doubt one of the most popular wedding days due to the general pattern of nice weather and the leaves changing. Even the OP said the next year's date is already booked, so you can get an idea of how far in advance this place fills up.

I truly think the OP can find another person to fill the spot, and perhaps transfer the "deposit" to their name. You'd be surprised what a bride would do to get such a great Saturday date in October around here!

 

[lil mermaid]

I am not a lawyer, but I do contracts for a living (even some catering contracts, but not many.)

The fact is, you signed a contract saying that if you didn't live up to your end of the bargain, that you would pay this guy 1/2 of the contract price as liquidated damages. (Plus legal fees and collection costs, I guess if it came down to that.)

I am not sure what the rest of the contract says, but as soon as the money becomes due for the scheduled event and you haven't paid it, you are in default. So technically, you are not in default YET, but as soon as that money comes due you will be.

Anyway, that being said, I would continue to try to talk the guy out of it. $7,500 is a lot of money to just throw away. Maybe if he is able to schedule another party he will let you out of it??? Or maybe you can negotiate something with him.

Anyway, good luck!

 

[Briar Rose 7457]

you should have seen some of the "high end" bar mitzvahs dd wwent to last year!

younger dd will be "on the circuit" next year.

one of my friends booked her wedding in January for the end of March. she wanted a simply wedding, her MIL wanted 250 guests. MIL won that argument, but my friend decided she didn't want to live with all that planning for months on end and decided to get married on the earliest date available. it was a gorgeous wedding.

 

[KNGMADDI98]

I'm a paralegal in Penna -- prior posts are correct your have not defaulted YET.....my personal advise would be to hire an attorney to write a letter to them ...... try and have the attorney negotiate a lower flat fee to them for their troubles....and if they book the hall to someone else refund you the $ in its entirety......It's worth spending $250-$500 for a letter to them - letting them know your not willing to back down. An good contract attorney (business law) wll find a loop hole in that K (contract).... The attorney I work for said he's only seen a few K's that couldn't be negotiated out of !!!!

 

[Hillbeans]

Originally posted by KNGMADDI98
I'm a paralegal in Penna -- prior posts are correct your have not defaulted YET.....my personal advise would be to hire an attorney to write a letter to them ...... try and have the attorney negotiate a lower flat fee to them for their troubles....and if they book the hall to someone else refund you the $ in its entirety......It's worth spending $250-$500 for a letter to them - letting them know your not willing to back down. An good contract attorney (business law) wll find a loop hole in that K (contract).... The attorney I work for said he's only seen a few K's that couldn't be negotiated out of !!!!

In theory I agree with this, however I do think the OP should pay something for xcl-ing out. Now this caterer has to shop this day to potential customers and it could very well not be booked for that day. In addition, the OP isn't going to have their rescheduled wedding there either, so the caterer is probably just very nasty because he can be knowing they aren't going to use them anyways. The caterer has done nothing wrong except be mean to the OP. He didn't change the date, they did. He's running a for-profit business.

 

[Briar Rose 7457]

under the law, the caterer has a duty to mitigate his damages. if he sits back and doesn't try to rebook the date, that's a failure to mitigate.

it's the cost of doing business. you figure it into your overhead.

 

[Razor Roman]

Also, the caterer has two rooms, so he is not making nothing for the night - and he doesn't have to staff our room if there is no event there, so technically he doesn't "lose" anything, he just doesn't make anything either. I am happy to let him keep the deposit. I would even settle with him for an additional fee if required.

 

[Briar Rose 7457]

th contract I signed with the caterer for my daughter's bat mitzvah did not have such a draconian liquidated damages clause. if I breached the ocontract I was required to pay his costs -- including overhead, staffing and supplies -- and his profit, but the amount was not set forth in the contract.

I sent you an e mail, Roman. negotiation with the caterer seems to be the way to go.