Wedding postponement offer: New (unfair?) terms

Ihatestress

Hello all, 
First time poster, hopefully this is the correct section - as all my woes are driven by Coronavirus!

We were originally due to be married on the 21st August 2020. With the ongoing government restrictions, we discussed postponement with the venue, as we had no confidence that the wedding would be able to take place as agreed (100 guests) on that date. They have offered us a new date in August 2021 which is not like for like, but is acceptable.

The problem is, the new date will only be confirmed if we agree to a raft of new terms. The new terms include several clauses relating to "Force Majeure" which basically mean that if there is coronavirus next year or anything else they have the right to cancel the contract, not provide the wedding and also claim their expected loss of profit plus any outstanding hire balance. Obviously, this looks to remove all risk from the venue and pass it on to us. As far as I can see, no Wedding Insurance will provide cover for Force Majeure.

What are our rights here? I don't think we can accept this new contract as it makes us liable for 100% of the costs with the risk of no wedding provided! Just doesn't seem fair or balanced. I would like to just walk away from this and plan something smaller scale, but there is the looming threat of the cancellation clause in our current contract which is also pretty onerous. We feel stuck between a rock and a hard place and have no idea how we can avoid losing thousands of pounds without getting what we entered into the contract for in the first place.

Thanks for any advice

Jeremy535897

I suggest you read this:
https://www.gov.uk/government/publications/wedding-and-event-venue-providers-letter-from-the-cma-on-contract-terms

unholyangel

A force majeure clause (did it actually use that wording? if so, did it then go on to explain what it means? If not then it's legal jargon and fails the transparency test) protects parties from additional losses incurred due to a breach that was not within their control. It does not allow them to hold you liable/make you their insurer - especially when the events are outside of your control too. 

As for where that leaves you......are the venue able to provide what was agreed at the time you entered the contract, or not?

Ihatestress

unholyangel said:

A force majeure clause (did it actually use that wording? if so, did it then go on to explain what it means? If not then it's legal jargon and fails the transparency test) protects parties from additional losses incurred due to a breach that was not within their control. It does not allow them to hold you liable/make you their insurer - especially when the events are outside of your control too. 

As for where that leaves you......are the venue able to provide what was agreed at the time you entered the contract, or not?

Hello,
Thanks for the reply.
 On the first point, one section  is titled "Force Majeure - Pandemic" in the new contract. It has several clauses that i've put below. I've removed the specific names. The bold part is the problematic part, as it entitles them to cancel and charge us. It is unclear whether the third clause subjects any such cancellation to a new agreement? I could perhaps agree to that.

FORCE MAJEURE - PANDEMIC
x.1 <venue> shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (including, without limitation, any pandemic and/or public restrictions imposed by the UK Government or any other regulatory authority arising therefrom, “a Force Majeure Event”).

x.2 In such circumstances <venue> shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for four weeks or the Force Majeure Event prevents <venue> from making the Venue available for the Function, either party may terminate this Agreement by giving written notice to the other, and upon such termination the Hirer shall pay the Cancellation Fee.

x.3 It is expressly understood and agreed by the Hirer that a postponement of their wedding as the result of a Force Majeure Event: (a) shall constitute the cancellation of this Agreement in respect of the Function and the entry by the parties into a new agreement in respect of the Function on a mutually agreed later date; and (b) shall entitle <venue>to retain any Cancellation Fee applicable to the postponed wedding and to treat the Cancellation Fee and all and any other payments by the Hirer reasonably requested by <venue>as non-refundable deposits to secure the later date for the Function. 

On the second point, it is difficult to assess. It is difficult to know whether the current / original date of Aug 21st could go ahead or not until we are much closer to the time? Certainly I would imagine there will be some restrictions on numbers in place by then - but there's no way of knowing for sure. A number of our guests are in a "high risk" category which I would imagine would prevent them from attending without a Vaccine. 

Thanks for reading

unholyangel

Ihatestress said:

unholyangel said:

A force majeure clause (did it actually use that wording? if so, did it then go on to explain what it means? If not then it's legal jargon and fails the transparency test) protects parties from additional losses incurred due to a breach that was not within their control. It does not allow them to hold you liable/make you their insurer - especially when the events are outside of your control too. 

As for where that leaves you......are the venue able to provide what was agreed at the time you entered the contract, or not?

Hello,
Thanks for the reply.
 On the first point, one section  is titled "Force Majeure - Pandemic" in the new contract. It has several clauses that i've put below. I've removed the specific names. The bold part is the problematic part, as it entitles them to cancel and charge us. It is unclear whether the third clause subjects any such cancellation to a new agreement? I could perhaps agree to that.

FORCE MAJEURE - PANDEMIC
x.1 <venue> shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (including, without limitation, any pandemic and/or public restrictions imposed by the UK Government or any other regulatory authority arising therefrom, “a Force Majeure Event”).

x.2 In such circumstances <venue> shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for four weeks or the Force Majeure Event prevents <venue> from making the Venue available for the Function, either party may terminate this Agreement by giving written notice to the other, and upon such termination the Hirer shall pay the Cancellation Fee.

x.3 It is expressly understood and agreed by the Hirer that a postponement of their wedding as the result of a Force Majeure Event: (a) shall constitute the cancellation of this Agreement in respect of the Function and the entry by the parties into a new agreement in respect of the Function on a mutually agreed later date; and (b) shall entitle <venue>to retain any Cancellation Fee applicable to the postponed wedding and to treat the Cancellation Fee and all and any other payments by the Hirer reasonably requested by <venue>as non-refundable deposits to secure the later date for the Function. 

On the second point, it is difficult to assess. It is difficult to know whether the current / original date of Aug 21st could go ahead or not until we are much closer to the time? Certainly I would imagine there will be some restrictions on numbers in place by then - but there's no way of knowing for sure. A number of our guests are in a "high risk" category which I would imagine would prevent them from attending without a Vaccine. 

Thanks for reading

The parts in bold are the parts I have issue with. 

Firstly, they can't use a force majeure clause in that way - to say they aren't in breach. Force majeure is explicitly to cover situations where you are in breach but it is outwith your control. They can limit their liability using a force majeure clause to only return payments you made in advance (and not additional losses), but it doesn't operate to make a breached term unbreached - that's just idiotic. 

Yes, you're right to be concerned that they seem to try to make the fee payable even when they themselves cancel the contract. 

The biggest part in bold has the effect of making the contract (and any unforeseeable variations) binding on you but not on them. 

Take a look at CMA's unfair contract guidance. https://www.gov.uk/government/publications/unfair-contract-terms-cma37

Personally, I'd tell them I'm willing to stay on standby until closer to the time. But that if it becomes evident they will be unable to fulfil the contract as agreed, you will not be signing their new & unfair terms and will be seeking a refund. Perhaps also remind them that in a wedding contract, it is implied into every single contract that time will be of the essence (aka it's a "make or break" part of the agreement, timing is essential). Therefore they cannot escape that obligation by hiding a disclaimer in the smallprint which essentially allows them to make unforeseeable variations to a contract while you remain bound to whatever they decide.