Who's right? Wedding Tog vs Unhappy Customer/s

[arthurking83]

Gee I'm glad I watched that!

Have never watched, nor have I ever been interested in ACA and others of that ilk, and that was the worst 4 or so minutes of television I've seen in a long time.
I suppose it simply re-iterates how much I'm not missing out on.

Loved the comment from the old finger pointing guy ...

it says 250 proofs ... As I said before, layman, to me a proof is a picture

As the editors job of this 'news' item, they should have cut the story at that point and consigned it to the '[Shift]Delete' dustbin of history.

Moronic reporting at it's best.

[Longshots]

Maybe COD would be best? I really don't know how the industry works, but i always liked a COD approach to everything. Credit is over rated.

Exactly - thats not how the industry works I'm afraid. Credit may be over rated to you, but in the commercial world, its the norm. Either accept it or get no work.

[beau]

Guys, there's some misinformation in this thread that I must clear up, otherwise some of you may find yourself in similar trouble in future.

I'm referring to the legal issues surrounding contracts with consumers and it's a little technical, so forgive me. I should point out that while I haven't quite finished my legal qualification, I have completed Consumer and Contract Law. As such, my advice isn't that of a legal professional, but a student. I suggest you consult a registered legal practitioner to confirm my advice before acting on it.

Right, now that that's out of the way...

The Trade Practices Act 1974 (Commonwealth) was the overriding legislation applying to corporate dealings with customers until January this year, when it was updated. It is now known as the Australian Consumer Law 2010 (Cth). Some of the changes go directly to some of the things being discussed here.

A few people have posted above that it is up to the COMSUMER to check the fine print of a contract and make sure they understand what they are entitled to receive and what they are entitled to pay. Essentially a concept of "Buyer Beware". In the past, this theory would have held some weight, but not any more.

Companies now have an obligation to ensure that customers understand the terms and conditions of a contract. Apologies for the capitals, but this is important;

IF THE CUSTOMER CAN SHOW THAT THEY DID NOT UNDERSTAND THE TERMS OF THE CONTRACT, THEN IT IS NOT BINDING.

Again, apologies for the caps, but that is essentially the main change. And it is a massive change.

So the onus is no longer on the customer, but on the company supplying the goods to make sure the consumer is aware of all T's & C's. This may sound unfair, but you can thank organisations like the mobile phone providers and their awful contracts with lots of fine print for the need to have the laws changed.

So, how do we make sure we protect ourselves?

Checklists.

When you present your contract to the customer, you should have another document as well, which basically has a list of everything you will supply and what they will be required to give you in return. It should also contain a list of all the numbers of each condition of the contract. You should go through the contract personally with the customer and make sure they understand everything and tick it off on the checklist as you go. Then, when your checklist is complete, you should both sign the checklist and both get a copy. Obviously date it as well. Use it as part of your contract. This is your confirmation from the customer that they understand the contract fully

If the customer wishes to get independent legal advice, they should do this before you do your checklist with them.

If the customer makes changes to the package after signing the initial contract, you should make sure you put it writing and at the very least get them to send you an email confirming the changes so you have something in writing. It is very difficult to prove the contents of a phone conversation, but something written will help.

Now, some of you will be thinking that I've been doing a lot of talking about companies and not sole traders or partnerships. This is because the Australian Consumer Law is Federal Legislation, and the Federal Government can only exercise legislative power over things as granted to it by s51 of the Commonwealth Constitution. The relevant ones here are corporations, inter-state trade and telecommunications. So if you are a registered company it applies to you, or if you are not a company but sell your services across State borders or utilise telecommunications for business (and it could be argued that websites, telephones, etc. all fit that description) the the Commonwealth law applies to you. If none of those things apply then you will fall under the relevant State Law for consumer protection, such as The Sale Of Goods Act (NSW). While the State laws are generally not as onerous as the new Federal law, it is expected that they will toughen up to mirror the new Federal provisions.

Sorry if that's all a bit technical, but it's unavoidable with legal stuff. I've tried to keep it simple, but in doing so may have made it too simplistic and missed stuff, so please consult a lawyer for proper advice.

Hope that clears things up.

Basically, that awful old mantra, "the customer is always right" has now been put into legislation... unless you can prove them wrong. Protect yourself by making sure you explain your contract (all of it) and have your customer sign to say they understand.

[Dylan & Marianne]

IF THE CUSTOMER CAN SHOW THAT THEY DID NOT UNDERSTAND THE TERMS OF THE CONTRACT, THEN IT IS NOT BINDING.

how you can prove it that you didn't understand the terms of the contract?
Surely that just becomes a 'he says /she says' battle of assertions??
for example , if the client says "It wasn't made clear what a proof was" and the tog says "I told them what a proof was" - who's word is going to be taken as true?? don't know much about legalities but there seems nothign solid in that statement at all.

[I @ M]

"It wasn't made clear what a proof was" and the tog says "I told them what a proof was" - who's word is going to be taken as true?? don't know much about legalities but there seems nothign solid in that statement at all.

Dylan, with the massive amount of legalese involved in everything these days a photographer in the business would be doing himself a favour to have a solicitor draw up an "idiot proof" contract.

The contract would contain something along the lines of a " a proof is a heavily watermarked 4x6 photograph as a sample of the image that you can choose and pay for as a final print".

At least that is my take on things, I know when it comes to such matters I prefer to pay someone (with appropriate insurance) to figure out the fine points.

[mongo]

Mongo agrees with Beau.

There is a little more however. What is the contract is not always limited to the written agreement. Sure, a lot of the disputes arise out of “I did not understand the contract”. However, quite a few more disputes arise out of “yes, I agree that is what the written part of the contract say, but he also told me that I would get “X” as well even though he did not write it in our contract”. The latter is very difficult to predict and guard against during the formation of the agreement.

In formal business contract, lawyers used to insert a clause to the effect that the written contract forms the whole of the agreement and it can not be varied unless also varied in writing. This is an attempt to exclude any possibility of verbal changes (and any misunderstanding about what the verbal change may have been). This method may not be useful in the more common day to day consumer transactions.

Unfortunately, this will be an ongoing area of difficulty for the situation mentioned in this thread.

PS – journalist – who cares ?!

[Dylan & Marianne]

thanks for the clarification mongo and Andrew!

[beau]

how you can prove it that you didn't understand the terms of the contract?
Surely that just becomes a 'he says /she says' battle of assertions??
for example , if the client says "It wasn't made clear what a proof was" and the tog says "I told them what a proof was" - who's word is going to be taken as true?? don't know much about legalities but there seems nothign solid in that statement at all.

The questions you raise would be a matter for a jury to determine. If they believe the client, then the contract will not stand. Simple.

The checklist I mentioned will solve your problems. Document everything.

Mongo is also correct, anything you say to a client up until the point where they sign the contract, is part of the contract, so document everything.

[kiwi]

Youa lso have to be very careful in pre-meeetinsg with the client when showing them albums or samples, there are cases in my industry where as part of a sales pitch clients are shown goods that are not specified in the contract and the court have determined that unless specifically excluded in the contract (as opoosed to not included) then the customer has the right to expect those goods in their deliverable (think wedding albums, prints etc)

[ricktas]

Ultimately, we may find all business end up doing what many medical professionals do. Video the consultation as proof and evidence of what was said during the consultation/meeting. This has reduced the rate of court cases in the legal profession. I think others who use contractual negotiations as part of their workplace will, in future, need to consider this option as a protection mechanism. After all webcams and disks are cheap, and its an easy way to record what was said, and can simply alleviate a court case in an instant.

It is amazing how a dispute from a person is quickly quashed when they view a video where the information has been both verbally discussed and given in written form

[Longshots]

Gu

IF THE CUSTOMER CAN SHOW THAT THEY DID NOT UNDERSTAND THE TERMS OF THE CONTRACT, THEN IT IS NOT BINDING.

Again, apologies for the caps, but that is essentially the main change. And it is a massive change.

Yay - lets start hitting the telcos, my rates, specifically my water bill, and many other unfair and ridiculous terms and conditions.

While not questioning your informed view, I think this will be pulled apart in the courts in a very short space of time. Much as I'd like this to afford some protection, I have my doubts that it would seriously stand up in court. I suppose time will tell

[ricktas]

Agree William. If all it means is that I can say " I didn't understand" to get out of a contract, what is the point of even having them. I could use it to get out of everything I have ever signed.

If this is true (the law change) then Australia needs to get some Lawyers with morals who become politicians, cause the lot that introduced this law need lining up against a wall and given a Breaker Morant style lesson.

[Mark L]

Checklists.

When you present your contract to the customer, you should have another document as well, which basically has a list of everything you will supply and what they will be required to give you in return. It should also contain a list of all the numbers of each condition of the contract. You should go through the contract personally with the customer and make sure they understand everything and tick it off on the checklist as you go. Then, when your checklist is complete, you should both sign the checklist and both get a copy. Obviously date it as well. Use it as part of your contract. This is your confirmation from the customer that they understand the contract fully

This seems like fair advise. When getting major extensions done to our house, something very similar to this was part of the process, before final contracts were signed.

[Longshots]

Ooops sent same message twice sorry

Perhaps what I should ask is a link or specific reference to this change in law - as I keep reasonably up to date with these things, it would appear I've missed what is clearly a monumental change ?

[Kym]

http://www.ocba.sa.gov.au/acl/index.html

Thanks Beau. So get customers to sign off the check-list that you take them through signing they understand the contract. Pretty simple

[Longshots]

Nah sorry - If thats the link, I'm well aware of it, and after checking with a few legal friends I cant quite swallow the :

IF THE CUSTOMER CAN SHOW THAT THEY DID NOT UNDERSTAND THE TERMS OF THE CONTRACT, THEN IT IS NOT BINDING.

theory.

I'd be more confident of its existence if I can read it in black and white - so as I said please advise.

I've read the ACL Australian Consumer Law extensively (and for what its worth used the unconsionable conduct term with photographic competition organisers very effectively already), and unless the contract is unfair, there doesnt appear to be something covering the quote in caps.

Happy to be educated though, so feel free to support the claim with a link to a government supported site please - and specific quote from the same ?

[beau]

You can do your own research on it. I raised it and said to get advice. I'm not interested in a long drawn out discussion on it or looking up relevant sections.

It's not about unfair terms or unconscionable conduct, it's more to do with misleading conduct. If a consumer can show that they believe they were misled, then you're in trouble. "Misunderstanding" and "misled" are not that far apart... not for a good lawyer anyway. Even most (if not all) state fair trading legislation deals with misleading conduct.

Ultimately, I don't care what you do with your business. Get advice, do as recommended. Simple. To not get advice is just asking for trouble... just like believing the word of anyone on an internet forum.

Just remember that the principal of caveat emptor will not necessarily save you.

[ricktas]

"Misunderstanding" and "misled" are not that far apart... not for a good lawyer anyway.

And there is the crux of it. For me (and I reckon most folk) there is a world of difference between a misunderstanding and being misled. You say 'not for a good lawyer" and therein lies the issue that causes the public to have the view of lawyers that they do.

[kiwi]

I reckon its a croc, misled and misunderstanding are as far apart as tables and carrots

[beau]

And there is the crux of it. For me (and I reckon most folk) there is a world of difference between a misunderstanding and being misled. You say 'not for a good lawyer" and therein lies the issue that causes the public to have the view of lawyers that they do.

Yep, you're absolutely right. But it is what it is, and ultimately these are all questions for a jury. It is quite easy to see a case where a photographer is claiming that the customer misunderstood the contract, while the customer argues that they believe the contract implied different things to what it actually did. It's a grey area and one that legal minds can exploit, and when it is up to a jury to make the decision emotion can come into it to some extent.

All I was suggesting is a really simple method of protecting yourself, that is all. If you get into a similar situation and can show the court that you went through the contract clause by clause and had your client sign off that they understood it, then you are a long way towards winning your case. It's partly about being seen to be responsible and open.

We can argue all we like about the morals of lawyers and the operation of the legal system, but nothing will change it. The best thing anyone can do is take steps to try and keep themselves out of the courts, and that is all I was trying to help with. If you're armed with good documents, a client's lawyer is less likely to pursue you.