Topic: Client Relations, Contracts
Time Investment: 8 Minutes
Suggested Product: Third-Party Payor Addendum
Couple meets you. Loves you and your work. Signs the photography contract and model release.
But what happens if a third-party pays?
Or wants to sign? What then?
It is important to understand who the actual [legal] client is so that your business keeps walking the straight and narrow by delivering to whom you owe a responsibility.
Hang with me through this, as I will get past the legalese, but it is great to have these terms outlined, defined, and understand how they impact your photography business in case this situation ever arises.
How do we determine who is a party to the contract? Isn't it always the couple?
Parties to the contract, the ones you are responsible to, are those that are part of the agreement itself through signing the agreement and promising to agree to all terms within the document. In the ideal situation, the couple would be the signing and paying party to the contract. Simple. The privity runs between the wedding couple and the photographer.
However, things get complicated when other parties step in to sign, and/or pay, the contract price. In American contract law there is a theory called “privity of contract”. This theory basically says that the only person(s) you owe an obligation to are the parties of the contract.
Parties of a contract are those that sign the contract and accept the responsibilities and terms of the contract (Note: they don't also have to be the paying party. Just merely agreeing to be bound to the contract obligations and responsibilities). It is so important to note that this does not mean it is always the couple. In the case of weddings where the parent(s) are the actual party on the contract, the couple become the beneficiaries of the contract. They are the third-party that the party (most of the time a parent or grandparent) intends to give the benefit of the wedding photography to.
- Father of Bride signs the agreement with you, the photographer.
- The Bride and/or Groom do not sign the agreement at all.
The parties are: Photographer and Father of Bride.
Third Party Intended Beneficiaries: Couple
So the couple really isn't my client if they don’t sign the contract?
Not legally. Maybe.
In this outlined example, the bride and groom will get the benefit of the contract, but it does not give them the right to go against the parties of the contract beyond the mere receiving of the benefit (in the case of a wedding photography services contract, they would only get the wedding services and products agreed upon in the agreement). In legal terms, there is no privity of contract between you, the photographer, and the wedding couple. In our example above, it only exists between you and the Father of the Bride who is the signing party. Caveat: Assuming there are no additional agreements between the photographer and the couple.
So no, the couple is not always legally your client; however, from a business and customer service standpoint, they are your “non-legal clients” that you need to make happy, as well as the signing party that you are in privity with.
The interchangeable use of this term can become confusing and lead to situations that may arise. It is kind of like serving two masters – although you’re not legally bound to the beneficiary. If there is an unhappy bride who demands she is your client, yet is not a party to the contract, you may still have a non-legal obligation to her – after all – you want good publicity right?
So how do I balance the demands of the party I’m in privity with when it varies from the wedding couple?
The wedding couple (the intended beneficiary) may have completely different expectations from that of the party in privity of the contract, so expectations should always be outlined to all parties and intended beneficiaries of the contract to avoid any miscommunication, confusion, and potential issues.
While legally the responsibilities of the photographer lie to the party in privity (in our example, the father of the bride), it is best to always consider the intended beneficiaries (the wedding couple) of the contract as well.
What if the signing party and the paying party are two different people?
Let’s say a the couple wants to hire you to photograph their wedding day. The couple is the signing party on the photography agreement, but the Father of the Bride is footing the bill. Now – who is the party to whom you are in privity with? Who do you owe your obligations to?
Just like before, the signing parties are the “client” as they are the ones who signed the contract and agreed to all the obligations of the agreement. You are working for them and must fulfill the requirements of the contract and their wishes for the wedding day.
However, the Father of Bride might have a cause of action if he does not receive images, and assert his position as an intended beneficiary because he is the one footing the bill. This isn’t a clear-cut answer, as the third-party beneficiary law will vary by jurisdiction, but is definitely a factor to take into consideration when entering into contracts with clients.
Note: Contract law does not necessarily demand that the contract include a provision when an alternate person wants to assume responsibility for payment because, by theory, the person signing is assuming responsibility for the entirety of the agreement – which would include payment. If a person wants to pay the monetary obligation, that is where it can get tricky. Simply, the signing person is agreeing to all of the terms, including payment. An additional clause is not needed. If Person A signs a contract with Photographer, Person A is responsible to the photographer. If Person B wants to pay and hasn’t signed the contract, Person A is still responsible to the Photographer. If Person B fails to pay, then there would be a conflict between Person A and Person B. Not between Personal B and the photographer. I’m going to spare you a completely additional legal theory that involves assuming of responsibilities in contracts. Just know- whoever signs is the person on the hook to you as the photographer. If Person A does not want to be, or is unable to be responsible for the monetary portion, then they should not sign the agreement. – Please note this example is merely to clear up a little bit of the cloudiness that contract law brings. If you have further contract questions for this type of situation, always seek a local attorney.
What does all this mean to me?
Besides being a whole bunch of confusing legal mumbo-jumbo, your first responsibility is to the signing party. This legal contract theory can work for you, or against you. It helps to understand in case there is ever a situation where a bride or groom is asserting their “client status” but is not actually a legal client. Refer above to the discussion on managing expectations.
If you will be accepting third-party payments – you need legal documents to get permission from your client, plus outline responsibilities with the paying party. Get the proper legal documents here.
So now what?
Hopefully you’re not completely overwhelmed. Just remember that simply put, the signing party is the person you owe duties to and is considered your client. (And that you might owe duties to a non-signing paying-party). Be prepared to approach these situations, especially when it comes to wedding photography, as multiple hands get put into the photography contract pot and can stir up issues.
Always be prepared to explain the privity situation to clients, as many do not understand this legal theory, and why would they, unless they are lawyers?
As the business owner, it is your responsibility to make sure every party understands their responsibilities, obligations, and the benefits they will receive.