Topic: Pandemic Protection, Covid-19
Time Investment: 15 Minutes
Suggested Product: Covid Resources
With all the news today about the coronavirus (COVID-19), more and more questions are arising about how it will affect our photography businesses and how we can contractually protect ourselves. This article, which we will strive to keep updated as circumstances change, evaluates how to manage your existing contracts, use of business insurance and other tips for business management during this time.
Last update: March 13, 2020 2:40pm eastern
Help! I have scheduled sessions/events!
Many photographers are concerned about existing contracts for upcoming weddings, events or sessions. The first step is to evaluate which applicable contract provisions apply to the current situation. These generally include rescheduling, cancellation and force majeure. Your contract may also have language specific to sickness or a substitute photographer as an option.
The impact of cancellations and/or reschedules, as well as potential refund of monies, will depend on the already executed contract language. Identify the section in your contract as to the availability of these options. Keeping in mind, even if it is not in your contract, you and the other party may mutually agree to reschedule or cancellation of the agreement. The tricky part occurs if one party wants to cancel and monies paid are requested to be refunded. Again this will depend upon the language agreed to in the contract and the circumstances surrounding the cancellation or reschedule.
For more information, see https://www.natlawreview.com/article/coronavirus-wash-your-hands-then-check-your-force-majeure-provisions.
Force Majeure Provision
The first step is to determine whether your contract contains a force majeure provision. If it does not, one will not be implied by common law in the United States. If it does, then let’s walk through the analysis of the defined event, and what the next steps are.
Typically, the legal contractual definition of a force majeure event includes:
- a list of items which are not anticipated as of the date of the contract
- are beyond the party’s control
- are not caused by the fault or negligence of the party seeking relief (directly or indirectly)
- and which either prevents or delays the affected party from performing its contractual obligation(s).
These circumstances render performance inadvisable, commercially impracticable, illegal, or impossible. These provisions are narrowly considered and must be drafted properly to encompass coronavirus.
The fact that a contract contains this does not mean you have the contractual right to invoke relief as a result of impacts to your business from the COVID-19 virus. Again, the specific language will determine if this provision will provide relief. It is recommended to seek local counsel immediately, as more than likely, your force majeure clause does not identify this virus by name.
If your contract appears to contain this language that applies to the circumstances your business is experiencing as a result of the coronavirus outbreak, the following is a non-exhaustive list of several factors you should consider before declaring a force majeure event:
-Does the provision require you to show the event could not have been mitigated by preventive action?
-Are there other provisions that can be invoked before the force majeure clause (i.e., cancellation/reschedule as mentioned above).
-Has the government issued specific classifications and requirements? Identify how government agencies are treating the outbreak. How organizations like the Center for Disease Control or World Health Organization classifying the outbreak at the time you want to invoke the provision may or may not provide support to your claim that a force majeure event has occurred.
Keep in mind:
-not all force majeure clauses are drafted the same – do not rely on the advice of others, articles and non-lawyers. Get specific advice on your drafted language.
-even if you are unable to use force majeure today, this does not mean you won’t be able to if circumstances change in the future days or weeks of the pandemic.
Even if you have the force majeure clause – you have a duty to mitigate damages. Talk to clients immediately, take use of travel company refunds within timeline, provide notice, etc.
For tips on evaluating using force majeure, see this article: https://www.gtlaw.com/en/insights/2020/3/coronavirus-and-force-majeure-contract-clauses
What else can help me?
Even if none of your contract provisions aid you in rescheduling or canceling, there may be defenses to non-performance; such as the contract doctrines of Frustration and Impossibility.
What if I need to cancel or reschedule?
As with everything in business, communication is key! Make sure your clients are aware of issues that will affect them. Keep detailed records of correspondence with clients. Discuss mutual agreement of date change, venue change, limit on attendees, or anything else that will affect the services you are contracted to provide.
Customer Service vs. Contract.
Sometimes, no matter the terms and conditions listed in the contract, good customer service may dictate your actions. It really all just depends on the situation and client. You can always offer more than the contract requires.
Lost Income & Options.
Now is a great time to reach out to your business insurance company to see if they have any coverage for the following situations:
-key person insurance or short term disability (should you fall ill)
-business interruption (for lost income) – some professional indemnity policies include this. Business interruption coverage is typically provided if there is a direct and physical loss such as a tornado, flood fire, or earthquake.
-another possible source of coverage relates to coverages triggered by the actions of a civil or military authority. If access to a property is impaired by order of a civil or military authority in connection with an insured peril – or a non-specified causes of loss coverage grant – there is a potential for recovery. Often these coverages last for four weeks. See National Law Review Article
If you don’t currently have any of these types of insurance – guess what now is? A good time to get it for the future!
In the meantime…
If you find yourself in one of the affected areas, take advantage of the downtime to work on the backend of your business.
Some ideas include:
- Use the savings you’ve saved just for times like this. If you don’t have savings, make a plan to start one once you can work again.
- Use the time to focus on marketing and branding.
- Do you use a CRM system such as IrisWorks, Dubsado, etc? Finish setting up automation or loading up your contracts, etc. See our recommended list here.
- Join Revamp52 and start working through the task list! (Shameless plug!)
Do I have to refund a non-refundable retainer/deposit/fee? This is going to depend on the language in your contract and surrounding circumstances at the time.
What If I need to travel to the event and transportation is cancelled? Notify and discuss with your client immediately. If their event is still occurring look to your contract and customer service option for ways to mitigate damages and help your client – such as a substitute photographer.
What if the venue cancels – do I have to refund? Again, this is going to depend on the language. Many contracts specifically have identified what retainers/deposits go to (i.e. scheduling of event on calendar) and may allow for you to retain the monies.
What if my contract says I can keep all the money even if the event is cancelled? You’re probably not going to win this one. Let’s use a wedding as an example – while you may be legally able to keep the retainer as it has specific language, you are not going to be able to keep 100% of the contract amount if the photography services weren’t rendered.
What if I don’t have anything to protect me? Consider whether there are alternative means to perform contractual obligations. Change of venue/location, restriction of number of people, institute hygiene policies, etc.
Force Majeure in the Wake of the Coronavirus https://www.paulweiss.com/practices/litigation/litigation/publications/force-majeure-in-the-wake-of-the-coronavirus-covid-19?id=30746