Need Legal advice. Problems with client and a deposit issue.

[Harold Mansfield]

I have a pretty simple problem, but it's stressing me out.

A client, an attorney, just ended our business relationship and is now asking for his deposit back.
The deposit was paid 3 weeks ago.

My terms of service clearly state "The deposit for custom design or special coding projects cannot be refunded." and those terms are linked to on all of my invoices.

I'm pretty positive that he's going to try and sue me for it, but pretty confident that I can prove in court that his project is a "custom design or special coding project".

My question is, do I have anything to worry about?
Are Terms of Service on a website binding in court?
Wasn't it his responsibility to read them before paying me?

[Steve B]

Did he have to "agree" to the terms or are they just listed on your website?

[Harold Mansfield]

Did he have to "agree" to the terms or are they just listed on your website?
No he didn't have to sign anything. But I did make him aware of where the terms are, and they are linked to right at the top of my invoices.

[Freelancier]

Maybe, maybe, and maybe.

The question is: is it worth it to you to find out? Did you do actual work for the deposit? If so, keep that amount and refund the rest and let it be him who has to defend why he paid you to get started and then decided to try to make you work for no money.

[Harold Mansfield]

I've also been doing maintenance work on his current website for a month now and there is no record of any dissatisfaction with my services. Actually quite the opposite.
But something changed today. All I did was ask a couple of questions in an email and he just went off on me.

[vangogh]

It would be better if you had a signed contract. I don't know that listing terms of service on a site are binding in any way unless you have to check the box to agree to them before doing anything. If you have emails where you also state the terms about a non-refundable deposit and can show something written where he acknowledges them I would think that would be helpful.

Are you talking about a lot of money? Is it worth fighting over? If your client is an attorney he might be more prepared to go to court. He might also be counting on you thinking that and assuming he knows more than you do and be more likely to threaten than actually follow through.

Is there any way you can just talk to him. If everything was going well could you ask him what happened? Ask him if there's something you did he was unhappy with. Do the basic customer service kind of stuff. I find the best way to avoid things like this is simply to make the client happy.

[Wozcreative]

You have the right as a business to try to fix the problem he has with your service. If something is messed up, he has to give you a chance to fix it. (so says judge judy) ;)

[Brian Altenhofel]

There are some folks that I don't bother with getting a contract (usually because it's a small job and not worth the hassle). Attorneys never fall into that category, and that's because several of my closest friends are attorneys.

Terms on a website are only enforceable against a website user, and even then they have to be reasonably conspicuous unless it's in the form of a clickwrap agreement. Since it's generally customary with web-related businesses to have terms and conditions governing products and services located on a website, it could be reasonably assumed that he consented to the terms by continuing the relationship after several notifications that mentioned the terms being located at a certain place online.

Whether it's worth fighting over or not depends on what the contract is worth. Couple thousand dollars? I'd at least spend a hundred or two on my attorney to have a response letter drafted and sent and attempt to call a bluff. Less? Well, that's up to you.

By the way, if trying to call a bluff, don't cheap out on attorneys... some of them charge high rates for their reputation, and that reputation can be communicated through their letterhead and envelope quite well sometimes. It's not always the strength of the case that determines the winner...

[Harold Mansfield]

It would be better if you had a signed contract. I don't know that listing terms of service on a site are binding in any way unless you have to check the box to agree to them before doing anything. If you have emails where you also state the terms about a non-refundable deposit and can show something written where he acknowledges them I would think that would be helpful.
Don't have that. But I do have every single email ever exchanged between us, including the recent caustic ones from today.


Are you talking about a lot of money? Is it worth fighting over? If your client is an attorney he might be more prepared to go to court. He might also be counting on you thinking that and assuming he knows more than you do and be more likely to threaten than actually follow through.
It wasn't at first, but after the way I was talked to, threatened and accused I completely changed my mind.I tried over and over again to resolve the situation amicably and he just kept going in circles rehashing things that I had already agreed with him on just to keep that "the customer is always right" attitude going.

This all happened in a matter of 30 minutes. It was almost as if it was planned from the very beginning that he was going to sabotage the project and try to jam me up.


Is there any way you can just talk to him. If everything was going well could you ask him what happened? Ask him if there's something you did he was unhappy with. Do the basic customer service kind of stuff. I find the best way to avoid things like this is simply to make the client happy.

I tried to speak calmly to him to quash some of the wild assumptions he was starting to make, but could barely get a word in. He was completely misunderstanding everything and was in his own world where all of a sudden I'm the worst person in the world.

This all started because I sent him an update on the project and asked about files and folders that were on the root. He totally went off on me...even started getting personal and questioning my personal finances. It was out of control. The whole time I was trying to talk him down and act professionally, but it was pointless.


You have the right as a business to try to fix the problem he has with your service. If something is messed up, he has to give you a chance to fix it. (so says judge judy) ;)

It was nothing I messed up. It wasn't even about any complaints about any work I'd done. It was personal.

As I said, I'd been doing maintenance and troubleshooting work for him for the last month with no complaints. It was because of my work and service doing that, that HE APPROACHED ME about redoing his website.

His repeated emails after the phone conversation were also pretty insane. It's like he turned into a different person other than who I'd been working with for the last 4 weeks.

My offer was to complete Phase One of the project and leave it so a new webmaster can take over and finish the other phases. But I will not refund the deposit. I've put too many hours into planning, consulting and trying to figure out his behemoth 2k page, poorly coded, gerry rigged site just to be able to put a proposal and plan together.

[Harold Mansfield]

Whether it's worth fighting over or not depends on what the contract is worth. Couple thousand dollars? I'd at least spend a hundred or two on my attorney to have a response letter drafted and sent and attempt to call a bluff. Less? Well, that's up to you.

By the way, if trying to call a bluff, don't cheap out on attorneys... some of them charge high rates for their reputation, and that reputation can be communicated through their letterhead and envelope quite well sometimes. It's not always the strength of the case that determines the winner...

I already put calls in to friends. One is a contract/trademark attorney and the other a web consultant whose been through this before on both sides of the coin and has a great lawyer if I need him.

I'm pretty confident about everything I've done for him up until today.

I've only had a problem like this once before in 5 years and coincidentally enough, it was also with an attorney. Lesson learned.

[tallen]

This all started because I sent him an update on the project and asked about files and folders that were on the root. He totally went off on me...even started getting personal and questioning my personal finances. It was out of control.

Sounds like maybe there is something he was trying to hide buried in those questioned files/folders...

[Harold Mansfield]

Sounds like maybe there is something he was trying to hide buried in those questioned files/folders...

I'm pretty sure that's not it. When he asked me how can he see the files on the server, I said I'd walk him though accessing the server via FTP, which we all know takes about 2 minutes. That seemed to infuriate him. I guess I wasn't supposed to answer the question that way.

I eventually just kept agreeing to download the files (which I had already done in preparation for the build) and send them to him, even though in the back on my mind I knew there were too many files to send in a zip. I would have had to send 5 or 6 emails and that would have really pissed him off. But I had no opportunity to explain that to him. He didn't want to hear or learn anything about what was going on. He just kept jumping from conclusion to conclusion about things that weren't even happening.

It was a no win situation. I can't beleive I kept my cool the whole time.

[cbscreative]

I've only had a problem like this once before in 5 years and coincidentally enough, it was also with an attorney. Lesson learned.

There are many service providers that refuse to deal with lawyers for this exact reason. The sad part is, the honest ones can find it hard to get service because your experience is all too common.

I'm certainly no legal expert and hopefully David will chime in on this thread, but when I was taking university classes and the subject of contract law was being covered, written communication like email is legally binding. It sounds like you have been legally clear and he is hoping to intimidate you. Whether this was premeditated from the start or his wife cut him off today isn't known, but the irrational behavior you describe isn't justified. I'd hold position and hope he cools down. If not, use your resources to avoid having him pull a lawyer trick on you.

I hope this all works out for you Harold.

[vangogh]

Sounds like a crazy situation, crazier than I thought initially. Hard to know what set him off. Asking a question about some files doesn't sound like something that should cause problems. Definitely strange.


I was taking university classes and the subject of contract law was being covered, written communication like email is legally binding.

I was thinking that was the case, but I wasn't sure. It is one reason I save all email and even ask very specific questions and answer with specific details. I hope never to have to deal with it, but I figure just in case it's nice to have that communication.

[Steve B]

The only thing to point out about e-mails being legally binding, is that there needs to be some acknowledgement of receipt from the receiving party. The same thing is true of information you have posted on your website. I tried to admit both of these types of things into evidence at my last court case, but neither were admissible because there was no proof they were rec'd. or looked at. In the case of the e-mail I sent, the judge said it could have gone to spam folder or a member of the family may have deleted it before the defendant read it. Regarding the stuff I have posted on my website, the judge said there is no proof the defendant ever looked at my website or read that specific page. I won my case anyway, but, I thought I'd add this experience in hopes it may add clarification.

I'm assuming with e-mail, if there was a string of e-mails between both parties, that it would them be admissible. In my case, it was an e-mail I sent, but not responded to.

[Harold Mansfield]

The only thing to point out about e-mails being legally binding, is that there needs to be some acknowledgement of receipt from the receiving party. The same thing is true of information you have posted on your website. I tried to admit both of these types of things into evidence at my last court case, but neither were admissible because there was no proof they were rec'd. or looked at. In the case of the e-mail I sent, the judge said it could have gone to spam folder or a member of the family may have deleted it before the defendant read it. Regarding the stuff I have posted on my website, the judge said there is no proof the defendant ever looked at my website or read that specific page. I won my case anyway, but, I thought I'd add this experience in hopes it may add clarification.

Thanks for sharing that.


I'm assuming with e-mail, if there was a string of e-mails between both parties, that it would them be admissible. In my case, it was an e-mail I sent, but not responded to.

I have every single email between he and I and his office manager ever sent. From very first contact, when they hired me, successfully completed work orders (all ahead of schedule), praise and thank you's, to the threatening ones he sent yesterday.

[cbscreative]

Interesting Steve, it never ceases to amaze me how the law rewards lack of responsibility unless it is between you and them.

[Harold Mansfield]

I have decided to give a partial refund of the support package that he purchased, since there are still hours left on it. But I'm standing firm on the new website deposit.
Had it been because he was dissatisfied with my work I may feel differently. But these were purely personal reasons, and they were unfounded.

The other thing that happened was that his office manager sent me an email that was nothing but lines of code and links to website files asking me to see if they have a spam problem with their company emails.
I responded that I can't really make heads or tails of what she has sent and what problems do you think you are having ( so that I could get a direction).

Mind you, I was not hired as the overall IT person. I was contracted to do a specific job concerning the websites. I will at times help with all kinds of issues if I can, but like all of us, I don't know every possible thing about any and everything that is online. I am very clear about what services I offer and the things that I am versed in.

She did respond with clarity but it was too late...he was already berating me about how I shouldn't be asking for clarity and should just learn what I need to in order to handle whatever tech related thing they throw at me.

Again, not the overall, in house, general IT person. And not an employee on salary. Contracted to do specific work.

Funny thing is, once I read her response and got some clarity, it was something that I could have taken care of for them...but it was too late. He had already jumped the gun and down my throat. As if I was one of his kids or an employee of his.

It was strange to say the least.

Talking to my contacts today to get a better feel on what to do next, if anything.

[Harold Mansfield]

He just rejected my offer to remedy the situation by completing Phase One of the project, along with a lot of garbage and intimidation attempts about how I've been reported to the fraud unit who now has access to freeze my bank accounts, they're going to shut down my business, and name dropping the local District Attorney.

It's clear to me now that he's reaching and is now trying to scare me with whatever he can throw at me. Even if it makes absolutely no sense and has no legal standing what so ever.

[Freelancier]

Time to cut bait. Send him a certified letter with the remaining money from the support agreement along with a note stating that you're not refunding the deposit because you told him before he paid that the deposit was non-refundable for any reason. Insist that all future contacts from him are in the form of a certified letter. Then move on.

[Steve B]

Wow - he sounds just plain crazy and, you can't argue with crazy. I'd spend a couple hundred on a lawyer and threaten him with whatever can be threatened (i.e. defamation, harrasment etc.).

[Steve B]

Interesting Steve, it never ceases to amaze me how the law rewards lack of responsibility unless it is between you and them.

I don't understand your comment.

[Harold Mansfield]

Wow - he sounds just plain crazy and, you can't argue with crazy. I'd spend a couple hundred on a lawyer and threaten him with whatever can be threatened (i.e. defamation, harrasment etc.).

I'm not going to play that game. I don't have the time.

As it is now, I'm ignoring any parts of his emails that are personal attacks and threats, and just responding to the business at hand. And I can tell that is agitating him because each email is more and more threatening. He's trying to get me into email flame war.

I'm confident in the way I've handled the situation and made multiple attempts at a remedy. As far as I'm concerned, I'm done.

If I need to address it further, I have good people to call on and are standing by if I need them.

[cbscreative]

I don't understand your comment.

What struck me about the case you outlined was it seemed the judge was releasing the other party from the responsibility of understanding the agreement you had with them. You did your part by providing info but the customer can escape responsibility if they don't read it. It's kind of like if I tried to sue a hammer company because their product wouldn't work to open a can of paint without making a mess. I know stupid things like that happen in our system but the judge's comments illustrate why.

But don't try to pull it on them though. If a law exists then ignorance of the law is no excuse and you are suddenly responsible no matter what. I call that a double standard. But then again, there's never been much place for common sense in the law and that's not likely to change. There are good reasons for all the lawyer jokes.

Back on topic to not derail the thread. That's why I made my comment short but apparently too short and unclear.

[vangogh]

The only thing to point out about e-mails being legally binding, is that there needs to be some acknowledgement of receipt from the receiving party.

Yeah I was more specifically talking email chains where there's clearly been an acknowledgement. Naturally with people I've worked with a lot I don't worry as much about this kind of stuff, because I figure we trust each other well enough to work something out. With new people I'll often wait until they respond to specific questions before proceeding with any work.

@Harold - I was thinking he was mostly trying to threaten you. What a nut though. It sounds like he's mad at you because you actually think you work for yourself and not him. Guess he thought you were suppose to follow orders and jump on command. Probably best to remove yourself from the situation at this point even if it means giving in some. The further away you can get from this guy the better.

[Harold Mansfield]

@Harold - I was thinking he was mostly trying to threaten you. What a nut though. It sounds like he's mad at you because you actually think you work for yourself and not him. Guess he thought you were suppose to follow orders and jump on command.

And that's exactly how he spoke to me. Like I was a 10 year salaried employee in his office responsible for everything IT. He was downright belligerent that if he or his office manager sends me ANYTHING IT related that it's my responsibility to handle whatever it is. If it was outside of my expertise or contracted duties, I was to learn it and take care of it without asking any questions.

It was quite the spectacle to listen to.

[Fulcrum]

Just a comical thought, have you considered doing some of the IT things, billing him triple (rush/emergency charge) for your time to learn it and fix it?

[Harold Mansfield]

Just a comical thought, have you considered doing some of the IT things, billing him triple (rush/emergency charge) for your time to learn it and fix it?

He rejected my offer to remedy the situation and complete the work as promised, and wants no further services from me. As far as I'm concerned the situation is done.

[Business Attorney]

Wow. Sorry I am late to the game. I have several comments.

Before I get to the law, it sounds like the guy is nuts. Dealing with someone who is acting irrationally can be very draining. It can drain your time, your money and your peace of mind. Sometimes it is better to walk away from a fight that you think you can win because the cost of the victory will be too great - a classic Pyrrhic victory.

As for the law, the underlying concept of contract law is that it is based on a meeting of the minds. There are lots of refinements, of course, but if you focus on the underlying concept it is easier to see how some of the problems arise.

First, there is the issue of timing. You mentioned that the link is contained in your invoice. In many cases, companies send invoices only after the work is already done. If that were the case, adding terms and conditions after the fact could hardly have been part of the original contract. A party cannot unilaterally add terms to a contract.

I assume that you mean that you invoiced him for the initial deposit, though, so he would have had an opportunity to read and understand the terms before he sent in the deposit. At least on its face, that would seem that he agreed to the terms and conditions.

However, judges also tend to require that both sides to the contract act in a reasonable manner. For example, let's say your invoice contains in large, bold letters the statement "Satisfaction Guaranteed or Your Money Back" and provides a link to your website that specifies that the product must be returned in its original packaging within 72 hours of purchasing, that it must be shipped at the buyer's expense to an expensive far away destination and there is a 25% restocking fee. The net effect is buyer would spend more on shipping than he would receive back, after the restocking fee. A judge might say that a reasonable buyer would not expect that the fine print would entirely negate the guarantee and could be excused from having failed to read the entire contract.

The truth is no one reads every word of every contract presented to them. I bought a new pair of glasses three days ago. I needed an eye exam to purchase the glasses, so they handed me their new patient form which included a solid page of fine print, including a privacy notice and who knows what else. I just signed it without reading a single word. I rented a car the week before. Same thing, although I did read the 9 places where they had me initial the contract to make sure that I knew what I was initialing. If the contract provisions are reasonable, I have no doubt that what I signed would be enforced against me. But let's say that they stuck in a provision that said if I posted a negative review on any website, I owed them $1,000. Do I think my signature would bind me to a provision that a reasonable person would not expect to find in such a contract? Not on your life.

I don't think anyone can tell you for sure that your terms and conditions are binding, particularly without knowing exactly what they say and how and when they were presented to the client. Your provision does sound reasonable, so it is not like the example I gave above.

I tell my clients that if you want something to be enforceable, you should first make sure that the other party clearly understands it to be part of the deal. If the other party finds out about a provision only after a dispute arises, you are already in a weaker position. Next, make the provision obvious so that a judge would not find the party credible if he claimed he didn't know. That's why many disclaimers are put in large, bold letters that stand out from the contract.

If you really want to make sure that your deposit is non-refundable, it would be so easy to state on the invoice "This deposit is not refundable" that I think you are at some risk burying it in terms and conditions on your website. You dictate your terms and conditions and you choose how well they are presented to the client, so you are going to bear the burden of the choices you make.

On a related note, I represent several developers, including a few web designers, and none to my knowledge will take on a design project without a written contract. I can't say for sure that obtaining a written agreement is standard industry practice, but it appears to be to me. Being at odds with standard industry practice can work against you in a dispute.

[Harold Mansfield]

Thanks David, I was hoping for your take on this.

The fact that my terms are on the invoice and the invoice/deposit was paid before any work commenced is not the only position I'm holding here.

It's the fact that I've done the client no harm, caused him no damages, and have a record of 14 different instances of work performed for him (all ahead of schedule) where he was completely satisfied. There is no record of any dissatisfaction. It was because of that work that he hired me for the additional services of building his new website.

When he ended the new website project, it wasn't because of bad service, poor workmanship, any harm or damages that I caused, any business or financial injury that I caused him, or being behind schedule.

There were no warning signs.

He literally went off on me for giving him a status update of the project and asking questions that I needed answered to complete my work.
Also for not immediately handling a separate IT issue sent to me by his office manager that had absolutely NOTHING to do with what I was contracted to, nor was it anywhere near any services that I provide or promised to provide in the proposal of deliverables, any emails, or phone conversations.

This is why he ended the project. It was he who acted unprofessionally, berated me with abusive language, threatened and tried to intimidate me over things that were not even happening. It was he who totally misunderstood that I was merely giving him a status update and threw in the towel full well knowing that he was forfeiting his investment in future work.

Even after the fact, I offered to remedy the situation by giving him full value and service of what I was working on. He refused to accept and is demanding a full refund of his deposit for the [2,000 page] website project.

Do you know how long it takes to even evaluate a site that size to even prepare a plan? Especially one as old, outdated, poorly coded, gerrymandered and pieced together as this one?

My position is that I should not have to eat that, just because he had a mental breakdown and flew off half cocked. That he can't demand damages or dereliction of duty about something that I wasn't even contracted to do.

Why should I have to pay for that, eat the time, and be penalized because of his mistake?

Furthermore, after the fact he sent constant threats, and intimidation tactics including straight out lying about the fraud department of the CC company having my bank accounts frozen, and business shut down. This was the same day. He was off his nut.

I did however, commit to giving a prorated refund of the maintenance and support package that he originally purchased because there was still time left on account. And I will do that.

[PayForWords]

Does the deposit cover 3 weeks of work?

Did you do the 3 weeks of work?

If so, I wouldn't worry about a refund...

If it is clearly listed on your site and that's where he purchased from...

You should be fine but I've seen stranger things happen.

In the future though, always vocalize it to him (via email) and sign a contract.

[Harold Mansfield]

If it is clearly listed on your site and that's where he purchased from...

You should be fine but I've seen stranger things happen.

In the future though, always vocalize it to him (via email) and sign a contract.

It would be hard for me to beleive that an attorney entered into an agreement and did not bother to read the terms of service. It's not like they are this big quagmire of fine print and run on sentences.
It's a clear list of bullet points that could be read in about 5 minutes or less.

It's also hard for me to beleive that an attorney didn't read the proposal of deliverables before he dropped a deposit for work. Not only that but we (He, I and his office Manager) discussed them in great detail on conference call so that I could insure that they understood exactly what the plan was so that I could deliver exactly what he wanted, to get the benefit that he desired.

It was also clear that sometimes during a build, especially one that is 2k pages and 10 years old, that some adjustments may have to be made along the way to account for unforeseen issues, and that I would be able to adjust on the fly and still deliver everything as promised. He said on that call point blank, "we trust you to do what needs to be done, to get it done".

My written proposals are in plain English. I never try and confuse people with technical terms and I explain everything to them. And I have client statements saying that is exactly what I do.

There is no way he can claim confusion, that he didn't thoroughly check me out, read my website, read my reviews, read the terms, or was under some other understanding. He's an attorney. He deals in details for a living.

I've read some of his legal docs and briefs and they are very thorough, if not sarcastic and long winded. This is not a guy that misses details.

The entire time I've dealt with him, he was insistent that all website questions go through him. That he was the point person. That it was his baby. That HE's the one that knows everything about it because he is the one that developed it from the ground up. And when I did that, he flipped out on me...basically because he couldn't answer ANY questions about how the website was built, his domain, hosting, files on the server...nothing. He knew nothing. And he wouldn't work with me to help him figure it out. He just verbally abused me and ended the project.

[Wozcreative]

It would be hard for me to beleive that an attorney entered into an agreement and did not bother to read the terms of service. It's not like they are this big quagmire of fine print and run on sentences.
It's a clear list of bullet points that could be read in about 5 minutes or less.

It's also hard for me to beleive that an attorney didn't read the proposal of deliverables before he dropped a deposit for work.
My written proposals are in plain English. I never try and confuse people with technical terms and I explain everything to them. And I have client statements saying that is exactly what I do.

There is no way he can claim confusion, that he didn't thoroughly check me out, read my website, read my reviews, read the terms, or was under some other understanding. He's an attorney. He deals in details for a living.

I had an attorney give me a contract before we started. It was a bit annoying because it listed a bunch of stuff and used super outdated words. I had to go through it and tell him that most of this doesn't apply, he even spelled my name wrong. He fixed my name and just told him that the rest doesn't matter. Really.. so what's the point of it?

[Harold Mansfield]

I had an attorney give me a contract before we started. It was a bit annoying because it listed a bunch of stuff and used super outdated words. I had to go through it and tell him that most of this doesn't apply, he even spelled my name wrong. He fixed my name and just told him that the rest doesn't matter. Really.. so what's the point of it?

I have no problem with non disclosures, but I never sign other people's contracts. I make the terms by which I will perform my services and deliver what they want. And I keep things simple. I don't let people pigeonhole me into terms as if I am an employee of theirs, instead of a temporary, self employed contractor hired to fulfill specific services.

I have had one or two try to get me to sign things like that, and I have refused. They both still hired me and were happy with my services as I delivered exactly what I promised, and then some..on time and on budget.

I spent a lot of time and energy building a great reputation, and catalog of happy clients. More important to me than anything is that people walk away happy with the work and the experience of working with me. So this situation does not give me any pleasure. The thought of having someone out there that has had a bad experience with me is painful to say the least.

But in this instance, I'm standing my ground and I'm pretty confident in my position that I have not wronged or caused damages to this guy, his website or his business in any way, and in the evidence that I have to support it.

[Freelancier]

It was a bit annoying because it listed a bunch of stuff and used super outdated words. I had to go through it and tell him that most of this doesn't apply

I think some attorneys write contracts specifically so that they are understood only by other attorneys. When I had our rental agreement created by an attorney, he sent me a first draft template he used, I turned around and ripped out everything that didn't apply and then changed the words so that mere mortals could understand it... we did two more rounds like that until we were both happy and I use it now. It's still a bit long, but it does cover everything I wanted it to cover so that both parties were protected. So... you're allowed to negotiate contract wording with your attorney if you don't understand what he wrote.

[Business Attorney]

Harold, just to be clear, it sounds like you should be entitled to be paid for what you did before he terminated the contract. If you had done no work, I might be concerned that you "nonrefundable deposit" language could be challenged though it sounds like you have a lot more facts in your favor even on that issue. If you started the work and he pulled the plug through no fault on your part, you should at least be paid for your work and most likely be able to keep the deposit even if it somewhat exceeded the value of the work.

Good luck with him. He sounds like a real piece of work.

[Harold Mansfield]

Harold, just to be clear, it sounds like you should be entitled to be paid for what you did before he terminated the contract. If you had done no work, I might be concerned that you "nonrefundable deposit" language could be challenged though it sounds like you have a lot more facts in your favor even on that issue. If you started the work and he pulled the plug through no fault on your part, you should at least be paid for your work and most likely be able to keep the deposit even if it somewhat exceeded the value of the work.

Good luck with him. He sounds like a real piece of work.

You input here is much appreciated David. Thank you very much. That seems to be the general consensus of everyone I've consulted on the matter.
Nothing to do now except wait for his next move, which I'm already anticipating and prepared for.

[Business Attorney]

I think some attorneys write contracts specifically so that they are understood only by other attorneys.

It probably appears that way to a non-lawyer, but I doubt that is the cause of poor legal drafting. There are many factors that conspire to encourage poor contract drafting.

First, contract language has been interpreted by courts for several centuries. If particular language has been interpreted by hundreds of judges to have a well-defined meaning in a contract, many lawyers are hesitant to say the same thing in a different way for fear that a seemingly innocuous change in language might cause a court to reach a different result, to the detriment of the attorney's client.

Second, almost all attorneys start drafting a contract from a form or template. If you went to a lawyer and asked him to draft an office lease, for example, I don't imagine there is a single attorney in the country who would sit down and start drafting the lease from scratch. Nor would you, as a client, ever want an attorney to do that. It would be incredibly inefficient and you would probably end up with a lease that was less than complete. Forms get revised and updated but rarely completely overhauled, so archaic language survives.

Thirdly, attorneys are typically risk-averse and don't want to be accused of not covering a point that later turns out to be significant. As a result, they typically pile on every potentially applicable provision. The attorney doesn't see any percentage in explaining to an irate client that leaving out a provision that would have been favorable to the client made the contract more readable.

Finally, good writing takes time. Just ask any of the writers on this forum. I consider myself a pretty good writer and editor. I have written for publication in a variety of forums, both law-related and otherwise. I have been an editor on several journals. Yet, many contracts that leave my office could have been honed and polished to be more concise and easier to read, but were not because the client wanted a document that accomplished his primary goals at a reasonable cost.

I recently prepared a distributorship agreement for client. Using parts of different distributorship agreements I had drafted in the past, I gave him a agreement of about a dozen pages. He asked if I could make it shorter (even though both of the agreements I started from were even longer). I explained to him that a few sections might be deleted entirely, and I told him the potential consequences of deleting each of those sections. He chose to delete some and chose to keep others, understanding that the risk was his. The deletions cut the document to about 10 pages. I also offered to go through his contract sentence by sentence and rewrite the sentences in a shorter way where possible. I told him that I could likely cut a couple more pages without changing the meaning of any of the provisions, but that rewriting the entire 10-page contract that way was probably a several hour job. He decided that the contract did not need a $1,000 editing job. In my experience, 99% of clients would have made the same decision. Few clients want to bear the cost of reworking an effective contract into an elegant one.

Over the years, on my own time I have rewritten and improved many of the contracts that I use often, and there are plenty more on my "to do" list. Also, when I find a form that I like better than my own, I adopt the new form. Still, there are many contracts that only cross my desk a couple of times a year or less. I can't justify editing those contracts for style on my own time and clients understandably usually don't want to pay more just to make the contract easier to read if there is no perceived benefit to them for doing so.

Note that I said that "clients understandably usually don't want to pay more just to make the contract easier to read if there is no perceived benefit to them for doing so." There ARE instances where improving a contract can benefit the client. For example, a poorly written contract may require that a client spend a lot of time explaining the contract to its customers or vendors, or otherwise result in a lot of time-consuming push-back from customers or vendors. A smart client will recognize that the extra time and money spent developing a readable contract that is free of legalese as well as shorn of all irrelevant or redundant language
can be a good investment

[Freelancier]

It probably appears that way to a non-lawyer, but I doubt that is the cause of poor legal drafting. There are many factors that conspire to encourage poor contract drafting.

I was being quite a bit facetious, didn't mean to rankle. I've dealt with enough attorneys (and my mom worked for several for many years) to know how contracts end up the way they end up... but no one else knew that, so my attempt at weak humor didn't even reach that mark.


Note that I said that "clients understandably usually don't want to pay more just to make the contract easier to read if there is no perceived benefit to them for doing so." There ARE instances where improving a contract can benefit the client.

This. If the party on the other side of the table doesn't want to have to hire an attorney to understand a contract that you require to do business with you -- and that will be true of most individuals and many micro businesses -- then it's important to make sure your contract is understandable. But it's also important to make sure that the contract will be properly understood by a judge, so a contract really has three parties that have to be able to properly interpret it... you, the other side, and the courts.

[Business Attorney]

I was being quite a bit facetious, didn't mean to rankle.

From your excellent posts and even your comment about your rental agreement, I knew you understood, but I have heard the point often and also know that there are people who think that lawyers write the way they do just so that non-lawyers cannot understand them. I thought it was a good chance to clear that up a bit (hopefully).

[Harold Mansfield]

Haven't heard anything about this since Friday of last week, but I know something is in the works.

It's like hearing a noise and walking around the house with a baseball bat, waiting for someone to jump out at you.

[vangogh]

Still no word I take it? Do you think there's any possibility this will go away or are you sure something is coming?

[Harold Mansfield]

Still no word I take it? Do you think there's any possibility this will go away or are you sure something is coming?

Nothing. No letters. No complaints filed. No disputes. No emails. Nothing online like a bad review. Nothing.

From what I've investigated, none of the dispute policies cover services and disputes have to be filed within a certain time frame, which is about to end.
The only recourse left is small claims, which I'm actually looking forward to. But so far not even any notification of that, or that he's started the process.

However, I'm still not confident that this is over.

[vangogh]

Hopefully it's over, though given what you've told us, I'm thinking it's probably not. Just the quiet before the storm.

[Harold Mansfield]

He's back, and he did file a dispute with his CC company. Luckily I was totally prepared for this.

It's now a case so I can't comment on it anymore, but will update when it's resolved.
Should be interesting.

[vangogh]

Can't say I'm surprised given all you've said so far. I won't ask more questions given the case. Let us know how it turns out.

[Harold Mansfield]

Well, Mastercard served as the accomplice to him ripping me off, and Pay Pal refunded his money. I never even had a shot. Credit Card companies just decide to screw people out of payment at will it seems, without ever talking to the service provider.

It really is that easy to have someone do work for you, suck up their time and knowledge, and then screw them out of payment.
Round 1 goes to him.

This is going to be an interesting year, cause I'm just getting started. This is my new hobby now.