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Am I overreacting about this contract change?  

post #1 of 60
Thread Starter 

Ok, so I recently agreed to do a "favor" for a local venue that I have a great relationship with. Not a "real" favor, a paid one. I agreed to do a wedding for new year's eve even though I am already booked. 

At the tasting I discovered that the groom is a lawyer (moving swiftly towards retirement age, so he's a GOOD lawyer.) 

He seemed nice but slightly condescending. For example, when I went to get my calculator that I had left on my other desk he joked that if "you have to use a calculator, maybe we're at the wrong place!" I joked back that I could charge him $800 for a $360 cake if he'd like to trust my calculations!!! (he got quiet after that)

 

Anyway, they took the contract home to "look it over" and now I get an email back saying he wants to make changes. 2 of the 3 changes are perfectly fine with me regarding design. However, one of them I believe changes the WHOLE tone of the contract. 

 

Now, my contract is standardized. Everyone signs the same contract, and then we do a separate quote and design form with a sketch, flavors, details, etc. So he is asking to change a standard contract that I have never had a problem with. 

 

My contract says, The Client assumes full responsibility for the guests and agrees to hold Cakescapes harmless from and against all bodily injury, property damage or consequential damages which may result from Cakescapes’ services and provision of the cake. 

 

He wants to add Except to the extent of Cakescape’s active negligence to the beginning of the paragraph. SO, this means (correct me if I'm wrong) that if HE (the lawyer!!) can prove that I was actively negligent for XYorZ, I can be held liable. CORRECT???

 

Anyway, I already emailed him back asking for clarification and basically saying I am not comfortable making that change. Did I do the right thing? 

 

This order is a total of $400ish. While the money is nice, it barely even meets my minimum order for weddings. I have never done anything to worry about a lawsuit, but just my luck would be that it happens with this guy that an aunt or uncle chokes on his cake.....

 

Thoughts? Am I overreacting? I tend to do that!

 

Also, if this guy throws a fit, should I let the venue manager know what went down? 

 

Thanks all, and sorry for the font differences, I was cutting and pasting!

life is short, get a cakesafe.
life is short, get a cakesafe.
post #2 of 60

I didn't even have to read the entire thing...you're NOT overreacting. This guy is a lawyer, which is great, but you're a business and you have a contract that is not to be changed, nor has it ever been, so what gives him the right to start the "trend", so to speak - because he's a lawyer? Nope. If I were you I would weasle my way out of that mess because that's exactly what it's going to become. GL

Today you are You, that is truer than true. There is no one alive who is Youer than You. -Dr. Suess

Today you are You, that is truer than true. There is no one alive who is Youer than You. -Dr. Suess

post #3 of 60

Whether he approves of it or not, your contract is your contract. If he doesn't like it, he's perfectly free to NOT sign it. However, I would make it absolutely clear - - No contract, no cake.

post #4 of 60
I wouldn't worry about the change. In the unlikely event of a problem resulting in a lawsuit, your liability insurance provider's attorney will easily have the case dismissed if the problem did not stem from your active negligence. For example, a guest choking on your cake would not be grounds for a lawsuit unless there was a foreign object in the cake that caused the choking.

Looking at things from the customer's perspective his changes seem pretty fair, since your standard contract states that even if you royally mess up and cause damage or injury you are not responsible.

Of course if you don't feel comfortable saying that you should be responsible for making things right if you mess up, then you are free to decline his changes.
post #5 of 60
Run for the hills!! For sure he would find something wrong with the cake or as you say someone choking on a slice of it. Noway would I confirm this order and to cover your butt you should e-mail the fact that you will not be making there cake just so your butt is covered come there wedding day and they try to claim that they ordered and confirmed a cake with you.
post #6 of 60
FYI, in some states your indemnification clause would be null and void anyway in the event of gross negligence on your part, so if you counter by changing "active negligence" to "active gross negligence" you may not be giving anything away or altering your liability by changing the contract.
post #7 of 60
I have a lawyer in the family and anytime I've asked a question that I'm unsure of I get All the lawyer talk and ways to get around stuff. Up to you but I would leave that lawsuit alone:-(
post #8 of 60
Thread Starter 

Thank you I really appreciate all your input. Jason, since he is a lawyer, I would assume that he is aware of the legality of the indemnification clause, which is why he is trying to change it. I could be wrong though. I will readily admit that I am more artist than anything!

 

I do have liability insurance, but correct me if I am wrong. Let's say I change it for him, the cake has something happen to it that causes harm and he can prove that it was my fault because of his background. My insurance covers it, but then my premium would go up. Correct? I don't want this person to be able to have that kind of power. 

 

I like your suggestion of active gross negligence. I may counter it. But I'll let it sit for a while. :)

 

 

BTW- he already wrote back and admitted that it was a big change, but that he shouldn't be responsible for injury caused by using the wrong ingredients. Whaaa??? I also have a clause about allergens, so I'm not sure what "wrong" ingredients could cause harm. 

life is short, get a cakesafe.
life is short, get a cakesafe.
post #9 of 60
Oh heck no theres that lawyer talk....sounds like he's saying if anyone can't eat an ingredient that you used to make your cake than they go and eat your cake and become I'll hrs would try and sue you....Nope he can't be pleased. Again ultimate to you but I wouldn't touch this with a ten foot pole and I for sure would let the venue know that you just weren't comfortable making his cake and why
post #10 of 60

For me this smells like trouble with a capital "T"... why does he feel the need or that he has the right to modify your existing contract? Because he's a lawyer?

 

The answer to that question would be a big eye opener. Hmmmm

 

With that said...to give him the benefit of the doubt you can ask him (if you really want to) why he feels that your existing contract is not apparently suitable?

 

It could be a simple case of him quoting certain aspects from your contract and you in turn to explain the full meaning and so forth (but I doubt this is the case!).

 

The buck stops with you Jenmat, and what I have realised is this -  that a customer has the right to shop around for the cake maker of their choice who meets their needs etc, but as a cake maker you also have the right to accept or to refuse custom.

 

I have refused business (only once so far) because it was simply not worth the hassle especially where I was too accommodating they still wanted more, so with that I simply sent them an email

 

"Dear xxxx,

 

I'm sorry our working relationship has not got off to the best start.  I don't think my service is for you as it is not suited to the way you wish to work.

 

Wishing you all the best with your endeavors.

 

Regards,

 

XXXX"

 

I think you should go with your gut instinct - no amount of money is worth the hassle for one to be dictating/calling the shots.

 

Where would it end?

 

When I re-read your thread again it came across as bullying just because he's a Good Big Shot Lawyer whose using his position/title/power to intimidate you etc...I could be wrong?

 

That's just my two pennies worth.

 

Nixs
 

The Sky is the Limit... If you ARE prepared to fly.

 

Success is not a destination...it's a journey.

 

http://www.noveltycakeslondon.com

The Sky is the Limit... If you ARE prepared to fly.

 

Success is not a destination...it's a journey.

 

http://www.noveltycakeslondon.com

post #11 of 60

I've been dealing with lawyers for the last 2 years (aging parents and their deaths with a contested will) and have come to have a new (horrible) opinion of lawyers and the type of people that enjoy being lawyers. I'd cross the street to avoid having any interaction with them....even the lawyer on your side (cause they never really are on your side, they are only on their side, making money). (I know writing that makes me sound bitter and biased, I am, based on my real life experiences.)

 

I find his need to change your contract to protect him and not protect you, unworkable and insulting!

 

Every professional you deal with from your doctor to the guy selling you flooring and insurance makes you sign their contact to not hold them responsible. WHEN in fact, those contracts really don't mean anything, they don't really stop law suits. Your groom lawyer knows that, he being a jerk when he doesn't need to be.

 

 

Someone who has access to free legal services is someone whom doesn't hesitate to wield that sword to scare all around them....and you should be scared unless you have unlimited funds.


Edited by Stitches - 11/25/12 at 3:03pm
post #12 of 60

I don't trust any lawyers!!!!  I also say run for the hills!!! He sounds like a jerk to me. Just because a lawyer is moving towards retirement age does not mean he is good!!! Actually, I know a few lawyers and they are all full of themselves and think they are better than everyone else, at least the ones I know.  With the way he was acting condescending to you in the very beginning tells me what kind of person he really is. I think you will have more stress taking him on as a customer since he is hard to deal with!!!

I had to deal with lawyers recently due to my father in law's death two years ago and I found out how horrible and heartless that they truly are!!! Stitches, I totally agree with you about lawyers. They only look into their own interests. As far as a lawyer is concerned I will never trust them again!!!

Good luck/Mary
 


Edited by remnant3333 - 11/25/12 at 3:19pm
post #13 of 60
Thread Starter 
Quote:

Every professional you deal with from your doctor to the guy selling you flooring and insurance makes you sign their contact to not hold them responsible. WHEN in fact, those contracts really don't mean anything, they don't really stop law suits. Your groom lawyer knows that, he being a jerk when he doesn't need to be.

 

See, this is exactly my impression. While I truly think the guy seemed unaware of his condescension the first time, I was surprised at his testicular fortitude. I shouldn't have been, but I was. The first thing I thought of was that "everybody has this clause!!"  At least, it seemed to me that it is in a lot of contracts I sign. There is another section about refunds in the case that the cake is wrong or bad that they get a full refund. So basically this clause was saying you can't take me for everything I have because you didn't like the cake or because little bobby joe has a reaction to any allergens. 

 

I don't have anything against lawyers at all. I just thought it would help everyone to understand the situation. 

 

I sent him an email with Jason's suggestion of "active gross negligence" and we'll see what he says. That way, if I put nails in his piece he can come and get me!

 

life is short, get a cakesafe.
life is short, get a cakesafe.
post #14 of 60
Quote:
Originally Posted by jenmat View Post

I do have liability insurance, but correct me if I am wrong. Let's say I change it for him, the cake has something happen to it that causes harm and he can prove that it was my fault because of his background. My insurance covers it, but then my premium would go up. Correct? I don't want this person to be able to have that kind of power. 
If you did cause someone harm through negligence and your liability insurance paid out for a lawsuit settlement or judgment, then it's a safe bet that your rates would go up (as they should, since in this hypothetical it was your fault). If it wasn't actually your fault, the fact that he is a lawyer won't magically make it your fault...don't forget you would have a lawyer on your side as well, that's the whole point of having liability insurance.

Even if you don't change your contract, you can still be sued and lose if the plaintiff clears the bar to nullify your contract's indemnity clause in your state.
Quote:
BTW- he already wrote back and admitted that it was a big change, but that he shouldn't be responsible for injury caused by using the wrong ingredients. Whaaa???
I'm not sure what he's talking about either, it may be more productive to just have a real-time phone conversation with him to get to the root of what his concerns are.
post #15 of 60

Bottom line, if he wants you to make a cake for him (them), there's no need to have all these complications - just let you make the cake, let you do your job. I'm not too sure what all the fuss is about..he's not any different than any of your other clients...he needs to go by your rules...I think you've answered your own question, I wouldn't do it because he's going to find something wrong reguardless, afterall, it would put him in the "spotlight"

Today you are You, that is truer than true. There is no one alive who is Youer than You. -Dr. Suess

Today you are You, that is truer than true. There is no one alive who is Youer than You. -Dr. Suess

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