Wedding tent deposit refund following bad weather cancellation

the_lunatic_is_in_my_head

DullGreyGuy said:

Secondly, need to check the force majeure clause in one or both of the contracts depending on the above, this is typically a hold harmless clause for matters outside of each others control (eg bad weather, war, riot, pandemic etc)

There is guidance on how to write terms with regards to force majeure :

'Force majeure'

Original term

Force Majeure. Time shall not be of the essence of the Contract and the Company shall not be liable for any delay in installation in the event of any strike, lock out, trade dispute, accident, fire, flood or any natural disaster or act of God or any contingency whatsoever beyond the reasonable control of the Company affecting the supply or installation of the Contract overleaf. Such suspension or cancellation shall not constitute a breach of Contract by the Company, nor will the purchaser be liable to claim for any loss or damage howsoever arising as a result of these circumstances.

Action taken

New term: The Company will manufacture and install the items within a reasonable time. 

Which seems to imply the company is still obligated to carry out the service but in the interest of being reasonable, issues such as those outside of control are acceptable for delay. Obviously the issue for this situation is the service was required on a set day and providing it at a later date doesn't derive any benefit. As above I think it is fair that the trader can cancel the service but the retention of funds seems dubious given it is the trader who has breached the contract unless something like this causes the contract to be "frustrated"?

In terms of them putting it up, it would be interesting to see how a court view this in terms of benefit derived under the contract, obviously the teepee being put up and taken down is part of the service but without the enjoyment of actually using it does that action give the consumer any benefit under the contract? 

DullGreyGuy

the_lunatic_is_in_my_head said:

DullGreyGuy said:

Secondly, need to check the force majeure clause in one or both of the contracts depending on the above, this is typically a hold harmless clause for matters outside of each others control (eg bad weather, war, riot, pandemic etc)

There is guidance on how to write terms with regards to force majeure :

'Force majeure'

Original term

Force Majeure. Time shall not be of the essence of the Contract and the Company shall not be liable for any delay in installation in the event of any strike, lock out, trade dispute, accident, fire, flood or any natural disaster or act of God or any contingency whatsoever beyond the reasonable control of the Company affecting the supply or installation of the Contract overleaf. Such suspension or cancellation shall not constitute a breach of Contract by the Company, nor will the purchaser be liable to claim for any loss or damage howsoever arising as a result of these circumstances.

Action taken

New term: The Company will manufacture and install the items within a reasonable time. 

Which seems to imply the company is still obligated to carry out the service but in the interest of being reasonable, issues such as those outside of control are acceptable for delay. Obviously the issue for this situation is the service was required on a set day and providing it at a later date doesn't derive any benefit. As above I think it is fair that the trader can cancel the service but the retention of funds seems dubious given it is the trader who has breached the contract unless something like this causes the contract to be "frustrated"?

In terms of them putting it up, it would be interesting to see how a court view this in terms of benefit derived under the contract, obviously the teepee being put up and taken down is part of the service but without the enjoyment of actually using it does that action give the consumer any benefit under the contract? 

Where is this guidance from?

The two terms are exceptionally different, the original term allows for the cancellation of the contract without it being considered a breach of contract. The revised term doesn't but instead allows for delays as long as they are "reasonable" and doesn't even link it to any particular events. What happens if your client is insisting on a fixed delivery date so "reasonable time" isn't acceptable to them? Would the OP be happy with them delivering and setting up the tent a week after their party if it was unreasonable to use it on the day because of weather and that was the soonest slot free?

The clause doesn't cause the contract to be frustrated, it effectively gives an additional cancellation clause or delay and hence is not a breach of contract which would give rise to the potential for damages but only for events outside of the control of the parties. Like any clause they can be as broad or tight as the parties want, in a previous contract we had a force majeure clause which allowed for delay but required that the effective date would always be at a quarter end because we had no capability to run the contracted activities mid quarter and to do so for the next 60 years would be a major change and cost. 

This original clause does work both ways though, had the tent been damaged in the storms the original term would mean they are not liable for the damages to it whereas the revised term gives no exception to liability. 


It's ultimately a complex situation and there is the unanswered question of why the tent was put up despite the weather warnings. Given how wide the warnings are it seems unlikely that the company was unaware of them and so in principle it sounds like someone insisted that it was put up and therefore also bring it down. Inevitably this will have cost the company money, exposed the tent to damage and ment both staff and tent couldn't be repurposed for something else. 

If the venue is the contracting entity and the venue insisted it went up then it's not unreasonable the venue has to pay for it. As they are the contracting entity it's their "enjoyment" not the OPs. What the OP has to pay towards it will depend on their contract terms, some will have a straight pass through of costs. If a margin is added then again it can create more matters to consider. 

the_lunatic_is_in_my_head

DullGreyGuy said:

Where is this guidance from?

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

Page 81 refers you to annex A 19b where appears to be this:

https://assets.publishing.service.gov.uk/media/5a8055d6e5274a2e87db93a6/Unfair_terms_guidance_Annex_A.pdf

It's examples of how not to write terms and what action should be take to ensure they aren't unfair. 

DullGreyGuy said:

The two terms are exceptionally different, the original term allows for the cancellation of the contract without it being considered a breach of contract. The revised term doesn't but instead allows for delays as long as they are "reasonable" and doesn't even link it to any particular events. What happens if your client is insisting on a fixed delivery date so "reasonable time" isn't acceptable to them? Would the OP be happy with them delivering and setting up the tent a week after their party if it was unreasonable to use it on the day because of weather and that was the soonest slot free?

Well yes which seems to imply the first term is invalid and only delay is acceptance but as above I agree with you OP doesn't need the teepee on another day.

DullGreyGuy said:Given how wide the warnings are it seems unlikely that the company was unaware of them and so in principle it sounds like someone insisted that it was put up and therefore also bring it down. Inevitably this will have cost the company money, exposed the tent to damage and ment both staff and tent couldn't be repurposed for something else. 

Presumably not at gun point I would assume this kind of business specifically requires risk assessment and the insistence of a customer shouldn't override that. 

DullGreyGuy said:

If the venue is the contracting entity and the venue insisted it went up then it's not unreasonable the venue has to pay for it. As they are the contracting entity it's their "enjoyment" not the OPs. What the OP has to pay towards it will depend on their contract terms, some will have a straight pass through of costs. If a margin is added then again it can create more matters to consider. 

But yes if the venue insisted I guess that's nothing to OP and if the venue is the contracted party the risk assessment falls on them with the same above, don't put up a tent in a storm, even if the customer insists, because it's a risk. 

DullGreyGuy said:

The clause doesn't cause the contract to be frustrated

I appreciate the term doesn't but wondered if the situation did? I don't know much about what a frustrated contract actually means so thought it worth a mention in case it's a legitimate factor where the trader could retain sums? 

DullGreyGuy

the_lunatic_is_in_my_head said:

DullGreyGuy said:

Where is this guidance from?

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

Page 81 refers you to annex A 19b where appears to be this:

https://assets.publishing.service.gov.uk/media/5a8055d6e5274a2e87db93a6/Unfair_terms_guidance_Annex_A.pdf

It's examples of how not to write terms and what action should be take to ensure they aren't unfair. 

The problem with law, and particularly in an English Law system, is that they are open to interpretation. I'd argue that the revised clause would be much more unfair to the OP than the original given it allows them to delay for any reasonable reason whereas the original is only for certain factors outside their control. 

I can't find a link to it right now but there is a spoof email chain claiming to be from a Slaughter & May lawyer drafting an invitation to eat burgers. By the 5th draft or so it's about 3/4 a page long and signs off that it's the best they could do given the complexity of the request and the unreasonable timescales. 

We have paid 6 figure sums to law firms and their recommendations and the executed contract was much closer to the former than the latter. In at least half the cases we were the buyer of services/products in the transaction. 

the_lunatic_is_in_my_head said:
Presumably not at gun point I would assume this kind of business specifically requires risk assessment and the insistence of a customer shouldn't override that. 

Guns arent required for something to be enforceable, indeed it's normally more enforceable if they arent involved. 

The best answer is... we need to know what actually transpired. Going down the rabbit hole of speculation, it could be the tent company told the venue the weather was going to be too bad, the venue could have told the OP's partner, the OP's partner said they think the tent really is needed as the venue is too small. The venue goes back to the tent company and says they appreciate the weathers predicted to be bad but weatherman get it wrong all the time so can they set it up anyway? Tent company says we can but it means the full cost will be due and you still must not use it if the weathers bad. Venue says ok, the mutual client really needs it. 

Would need to see the rest of the contract to see if there are caps on liability for use against instruction in which case verbal may have been fine, if not a sensible company would want it in writing that its at own risk. 

the_lunatic_is_in_my_head said:
But yes if the venue insisted I guess that's nothing to OP and if the venue is the contracted party the risk assessment falls on them with the same above, don't put up a tent in a storm, even if the customer insists, because it's a risk. 

Depends on the OPs contract with the venue, could be a pass through of all costs agreed in advance or reasonably incurred in the performance. In this case the cost had been agreed in advance 

the_lunatic_is_in_my_head said:
I appreciate the term doesn't but wondered if the situation did? I don't know much about what a frustrated contract actually means so thought it worth a mention in case it's a legitimate factor where the trader could retain sums? 

Frustration typically has to involve things not reasonably foreseeable. I have no idea up to what windspeeds a tent can be used in nor how common it is in the UK for winds to exceed those speeds. Dont know if there is any official guidance, if its specific to the particular tent or purely a the discretion of the company. 

You cannot have a frustrated contract if you have a force majeure clause as it already defines what happens in the event of something that would frustrate a contract. 

the_lunatic_is_in_my_head

DullGreyGuy said:

Frustration typically has to involve things not reasonably foreseeable. I have no idea up to what windspeeds a tent can be used in nor how common it is in the UK for winds to exceed those speeds. Dont know if there is any official guidance, if its specific to the particular tent or purely a the discretion of the company. 

You cannot have a frustrated contract if you have a force majeure clause as it already defines what happens in the event of something that would frustrate a contract. 

We're in an area I don't know here, I would have thought most the things under force majeure are unforeseeable, is there a difference to the company if they can't perform based on something being unforeseeable and the contract frustrated or can't perform due to a force majeure clause?

DullGreyGuy said:

The problem with law, and particularly in an English Law system, is that they are open to interpretation. I'd argue that the revised clause would be much more unfair to the OP than the original given it allows them to delay for any reasonable reason whereas the original is only for certain factors outside their control. 

I can't find a link to it right now but there is a spoof email chain claiming to be from a Slaughter & May lawyer drafting an invitation to eat burgers. By the 5th draft or so it's about 3/4 a page long and signs off that it's the best they could do given the complexity of the request and the unreasonable timescales. 

We have paid 6 figure sums to law firms and their recommendations and the executed contract was much closer to the former than the latter. In at least half the cases we were the buyer of services/products in the transaction. 

Well the CRA already imposes reasonable time (where no time is given) as an implied term so maybe it's circling round to that, possibly not the best example as this is a service that is only useful at a fixed point in time. 

flaneurs_lobster

£3600 to hire a tent for a day? 

Really? 

Skiddaw1

flaneurs_lobster said:

£3600 to hire a tent for a day? 

Really? 

For a wedding-style teepee most definitely. Nothing unusual about that.

FloydTheBarber

Thanks all. To try and answer the main points above:

1) So I need to find out whether our contract is with the teepee hire company, or as I suspect with the venue who subsequently have a contract with the teepee hire company? The venue's T&Cs say this, which seems to suggest the latter:

"Any temporary outdoor structure required for extra dining and/or socialising space, for example a marquee, yurt or teepee, is hired by [venue] from trusted suppliers with costs included in the facilities hire charge."

2) The closest thing I can see to a force majeure clause in the venue's t&c's relating the the outdoor structure is:

"If the structure can not be erected or used without risk to health and safety and/or property because of weather conditions or any other cause beyond the reasonable expectation and control of the suppliers, [venue] shall not be held liable for any costs incurred." 

Remember under the cancellations section of the venue's t&cs the venue say that booking deposits aren't refundable after 14 days.

3) For clarity, at no point did we insist the teepee was erected. (We have had no dealings with the teepee hire company whatsover, we weren't ever told their name, it was only after the event that we were shown the teepee company's t&cs). I've no idea whether the venue insisted anything or not. In fact looking at the teepee hire company's t&c's (that remember were shared with us after they cancelled), they say:

"The Company will make every effort to complete the erection of the Equipment on or before 2 days prior to the event date, or an alternative date agreed in writing by both parties, provided that the Client has complied with the undertakings set out above. If the Equipment is not erected on or before 2 days prior to the event date, or the alternative date agreed in writing by both parties, the Client shall have the right to withdraw and the Company shall return all monies paid."

So it sounds like it was in the teepee hire company's interest to erect the teepee?

Undervalued

FloydTheBarber said:

Thanks all. To try and answer the main points above:

1) So I need to find out whether our contract is with the teepee hire company, or as I suspect with the venue who subsequently have a contract with the teepee hire company? The venue's T&Cs say this, which seems to suggest the latter:

"Any temporary outdoor structure required for extra dining and/or socialising space, for example a marquee, yurt or teepee, is hired by [venue] from trusted suppliers with costs included in the facilities hire charge."

2) The closest thing I can see to a force majeure clause in the venue's t&c's relating the the outdoor structure is:

"If the structure can not be erected or used without risk to health and safety and/or property because of weather conditions or any other cause beyond the reasonable expectation and control of the suppliers, [venue] shall not be held liable for any costs incurred." 

Remember under the cancellations section of the venue's t&cs the venue say that booking deposits aren't refundable after 14 days.

3) For clarity, at no point did we insist the teepee was erected. (We have had no dealings with the teepee hire company whatsover, we weren't ever told their name, it was only after the event that we were shown the teepee company's t&cs). I've no idea whether the venue insisted anything or not. In fact looking at the teepee hire company's t&c's (that remember were shared with us after they cancelled), they say:

"The Company will make every effort to complete the erection of the Equipment on or before 2 days prior to the event date, or an alternative date agreed in writing by both parties, provided that the Client has complied with the undertakings set out above. If the Equipment is not erected on or before 2 days prior to the event date, or the alternative date agreed in writing by both parties, the Client shall have the right to withdraw and the Company shall return all monies paid."

So it sounds like it was in the teepee hire company's interest to erect the teepee?

It could be argued you did. You had booked it for your wedding and had the weather been safe to have used it you would no doubt have been very annoyed if it hadn't been erected. With hindsight the weather was judged to be unsafe but nobody knew that for certain until the day.

There is maybe an argument that you should have been consulted, given the severe weather forecast, to see if you wanted to mitigate the financial risks in any way. When were you told it was (or indeed was forecast to be) unsafe to use?

Although very strong, the winds that day were nowhere near as bad as some forecasts suggested where I live. In other areas the opposite may have been true but that is the nature of forecasts.

the_lunatic_is_in_my_head

OP where was the wedding venue (rough area will do)?