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Am I overreacting about this contract change? - Page 2  

post #16 of 60
There's absolutely nothing wrong with modifying your contact at the request of a customer, as long as you understand the modification and are OK with the new wording.

In this case, we are basically talking about codifying what should already be the policy of any reputable business: if you mess up, you will make it right. As a customer, if a business was not willing to take this responsibility in writing that would be a red flag.
post #17 of 60
I would not call him....than you have no proof of what is said or not said nope emails to show you ccanceled his order
post #18 of 60
Quote:
Originally Posted by kazita View Post

I would not call him....than you have no proof of what is said or not said nope emails to show you ccanceled his order
After you get off the phone, summarize the conversation in an email and request confirmation from the customer whether the order is cancelled or not.
post #19 of 60

Well, what I see is that it took a lawyer to carefully read your contract and to realize that the clause in question is designed to transfer liability to the customer/signer of the contract. 

 

He IS a good lawyer, and a smart cookie--I'd retain him any time--because I wouldn't sign a contract containing that language, either.  He realizes that it IS a big deal.  He certainly hasn't tried to sneak it by you or to minimize it.  He's trying to clarify where his liability ends and yours takes over--that's a good thing, in my book. 

 

I'm only willing to take on liability for what I can control.  When I'm the customer, I can't control what a baker bakes, so why would I willingly sign a document that says I'll shoulder any problems that should arrive from another person's product/process?  It's not like I can take out liability insurance for someone else, nor would I want to do so if I could.

 

If I contact a firework designer to create a display for me and I see a clause that says,


"The Client assumes full responsibility for the guests and agrees to hold Fireworks Plus harmless from and against all bodily injury, property damage or consequential damages which may result from Fireworks Plus’ services and provision of the fireworks."

 

I RUN if they won't change the contract to state, "Except to the extent of Firework Plus' active negligence"

 

If his change makes you uncomfortable, then he's just not the customer for you.  If your current contract makes him uncomfortable enough, then he'll likely to decide that you're not the baker for him.  Just because "everyone" signs it may only mean that "everyone" doesn't understand the full implications of the clause....

 

Rae

I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
post #20 of 60
It's a one time thing.....it's a wedding cake there are no redos . He's questioning your ability to make the cake to his unheard of expectations....if he's unhappy with your cake you can't redo it yes you can give him a refund or money off his next order but that's what you are trying to prevent in the first place
post #21 of 60
Quote:
Originally Posted by kazita View Post

It's a one time thing.....it's a wedding cake there are no redos . He's questioning your ability to make the cake to his unheard of expectations....if he's unhappy with your cake you can't redo it yes you can give him a refund or money off his next order but that's what you are trying to prevent in the first place
Being "unhappy" is not the same as causing property damage, bodily injury, or consequential damages due to active negligence. The revised contract would cover the latter, not the former.
post #22 of 60
He's A lawyer he would find a reason a way to sue.....plus would we really want him to be unhappy with the cake than he tells all around to not go to her bakery
post #23 of 60

 A non-lawyer is no match for a lawyer. You might have a great point, you may be totally in the right. But a lawyer can make shear HELL out of something that seems very small! They can drag things out and blow little issues into hurricanes...........that can take months and years to resolve. Months and months of legal bills at $300. per hour is nothing to laugh about. If you loose, you can be forced to pay your lawyers fees and your groom lawyers' fees, plus any other legal fees for other people (the vendors) lawyer. That's why people settle cases, because the lawyers can cause more harm to you, then whatever the original case was about. It's always cheaper to settle even when your totally right.

Lawyers are friends with other lawyers and judges. Don't be certain you'll get justice, just because your correct. The legal system doesn't work so cleanly.

 

What Jason is suggesting seems logical and even handed...........but, he's telling you it's o.k. to play with fire. Obviously we all have different levels of tolerance. I have none, I've been seriously burned by lawyers, I'll never go near one again if I can avoid it. I only played with fire because I needed to help my parent, I had no choice then.

 

Understand that just because you have insurance doesn't mean your business will survive a law suit. I've seen huge food businesses go under from 1 food poisoning case. In IL, Ralph's in Lincolnwood went out of business from one law suit over food poisoning. The vendor who purchased the cake from Ralph's mis-handled (didn't refrigerate) the cake. Before you knew it, several companies were dragged into the law suit. In the end everyone involved went out of business, all but the lawyers (they all got richer).

 

Insurance means nothing, it might not even pay for your lawyer to defend you. Insurance companies find any and every excuse not to pay out claims. Do we all really know the fine details of our insurance contracts? I bet not! Just because you have insurance doesn't guarantee that you won't need your own lawyer to force them to pay out.

 

Some people need to get really burnt to understand just how really bad it feels when your the one who gets burnt. Nothing is life is fair, not fires, not the law.

post #24 of 60
Thread Starter 

Well, we came to an agreement about "gross" active negligence. He wasn't exactly happy about it, but he agreed. 

 

I don't intend on screwing with this guy's wedding. I was prepared to run away if he didn't agree to these terms, but he did and they are sending full payment tomorrow. 

 

I have NOTHING against smart lawyers. I do have something against customers who ask me to change my policies. I did not create the contract, I used a copy of Doug's and adjusted it to fit my needs and have had several trusted professionals praise it. 

 

I have not dealt with many contracts, but this clause does not seem unreasonable. The fact that someone could come and sue me and my business over  a $360 cake is not ok with me. I will always refund money when I have made a mistake, and that is in my contract. But to open myself up to a lawsuit that could take away my house and my child's future is simply not ok. Not over a cake. My choice.

 

Thanks everyone!!! 

life is short, get a cakesafe.
life is short, get a cakesafe.
post #25 of 60
Quote:
Originally Posted by Stitches View Post

I've seen huge food businesses go under from 1 food poisoning case. In IL, Ralph's in Lincolnwood went out of business from one law suit over food poisoning. The vendor who purchased the cake from Ralph's mis-handled (didn't refrigerate) the cake. Before you knew it, several companies were dragged into the law suit. In the end everyone involved went out of business, all but the lawyers (they all got richer).
That sounded a little odd, so I looked into the story. A wholesale bakery called Rolf's (Ralph's is a grocery store) in Lincolnwood voluntarily recalled their products due to contamination in Dec 2010. They closed to address the health issues and reopened Jan 2011. Then in Jan 2012 they went out of business, probably from the loss of sales and costs of recalling thousands of items. There is no mention of a lawsuit about the food poisoning (although they were sued because they failed to pay their employees before they closed), but even if there was a lawsuit, it sounds to me like the recall was the primary cause of the bakery going out of business.

http://chicago.cbslocal.com/2010/12/30/rolfs-bakery-to-reopen-after-tainted-desserts-sickened-100/
http://chicago.cbslocal.com/2012/01/10/rolfs-bakery-workers-we-were-left-out-in-the-cold/

Just like in any other profession, there are some good lawyers and some bad lawyers...but lawyers are not magic, and in many cases it's not that difficult to understand what's going on if you do a little research. Modifying your contract to reflect what you would have done anyway just doesn't seem like that much of a risk to me.
post #26 of 60
Quote:
Originally Posted by jenmat View Post

Well, we came to an agreement about "gross" active negligence. He wasn't exactly happy about it, but he agreed. 
Of course he wasn't happy, he didn't gain anything. icon_wink.gif But at least he saved face.
Quote:
The fact that someone could come and sue me and my business over  a $360 cake is not ok with me. I will always refund money when I have made a mistake, and that is in my contract. But to open myself up to a lawsuit that could take away my house and my child's future is simply not ok. Not over a cake. My choice.
Any time you sell food to the public you risk a catastrophic lawsuit (worst case being medical costs + punitive or wrongful death) regardless of what your contract says. It's a very tiny risk, but a risk nonetheless.

That's why it's so important to have multiple layers of protection. Your first line of defense is keeping things out of court with a settlement and/or mediation. Next you have liability insurance, which will provide legal counsel and pay out judgments. Finally you have an LLC, so if for some reason you do have to pay out a large judgment, the LLC can take the hit and file for bankruptcy so your personal assets are safe.
post #27 of 60
I hope this works out for you, but no way would I have ever altered a contract for a client, least of all one that pretends he knows what he is talking about.

Attornies have specialties. They arent jack-of-all trades. So just because he has a law degree doesn't mean he is qualified in contract law. See, he wasn't giving you advice on how your contract is illegal, all he did was change the wording to further benefit HIM, knowing that most people would go "huh, well he's a LAWYER so he Knows and I must be wrong!". I assure you, in most cases they don't have a clue what they are doing. They literally rely on you feeling inferior when they waive that law degree in your face.

My advice is to never alter your contract and contact him tomorrow to let him know that you contacted the attorney that prepared the contract that you use and he has strongly advised you to not change your wording.
post #28 of 60
Oops just realized you already agreed on a change. Best of luck!
post #29 of 60
Quote:
Originally Posted by jason_kraft View Post


That sounded a little odd, so I looked into the story. A wholesale bakery called Rolf's (Ralph's is a grocery store) in Lincolnwood voluntarily recalled their products due to contamination in Dec 2010. They closed to address the health issues and reopened Jan 2011. Then in Jan 2012 they went out of business, probably from the loss of sales and costs of recalling thousands of items. There is no mention of a lawsuit about the food poisoning (although they were sued because they failed to pay their employees before they closed), but even if there was a lawsuit, it sounds to me like the recall was the primary cause of the bakery going out of business.
http://chicago.cbslocal.com/2010/12/30/rolfs-bakery-to-reopen-after-tainted-desserts-sickened-100/
http://chicago.cbslocal.com/2012/01/10/rolfs-bakery-workers-we-were-left-out-in-the-cold/
Just like in any other profession, there are some good lawyers and some bad lawyers...but lawyers are not magic, and in many cases it's not that difficult to understand what's going on if you do a little research. Modifying your contract to reflect what you would have done anyway just doesn't seem like that much of a risk to me.

Sorry, I did spell Rolf's incorrectly, I'm a horrible speller! In fact, I've met the owner of Rolfs many times and have attended many pastry demonstrations in the back of his kitchen (but even his name eludes me right this minute), thanks for pointing out my mistake.

 

None the less, I do know the behind the scenes story of what happened at Rolfs. I didn't think I needed to explain a long complicated story about Rolfs, instead I summerized what I believe to be true. Your quoting what you found on line in ten minutes as if that's the whole story. Rolfs was a HUGE/HUGE business, not by any means your average Mom & Pop Bakery. They were in the process of opening a giant plant in WI when the food born illness issue happened.......(on top of our decline in business in the US). 

 

There were tons of law suits and posturing between the businesses involved.  Perhaps none of them actually made it to trial, that doesn't mean it didn't involve a lot of lawyers and costs. Once they discovered which product was contaminated Rolfs would have been stupid to fight responsibility in court. Had the food poisoning not happened I don't believe Rolfs would have gone under, they were growing enormously at the time. The recall at the beginning was because they didn't know what product was causing the issue. They recalled product to protect themselves and others. It might be something the health department insisted upon (who knows). Then banks loaning money for his plant in WI lost confidence. Had anyone of those things not happened maybe Rolfs would have survived. Rolfs was owned by a wonderful generous person, who gave back to the industry constantly, he is loved through-out the pastry world. I don't know anything about the employee payroll issue other then what I saw on local tv............so I can't address that issue you brought up which has nothing to do with what I was talking about.

 

But you can't judge a book by the cover Jason. I find the fact that you need to double check what I'm saying to discredit me, unusual.

 

I disagree that "it's not that difficult to understand whats going on if you do a little research", perhaps not for you, but everyone is not like you....which is why my answer to the question was different then yours.


Edited by Stitches - 11/25/12 at 9:04pm
post #30 of 60
Quote:
Originally Posted by Stitches View Post

Had the food poisoning not happened I don't believe Rolfs would have gone under
Agreed.
Quote:
Then banks loaning money for his plant in WI lost confidence.
This is probably the main reason. If they were highly leveraged and had a bunch of new sunk costs (which they would if they were opening a new factory), the cash flow issues may have done them in. Companies survive recalls and lawsuits all the time, the Rolf's recall just happened to come at the worst possible time. I just don't see how this example applies to changing a contract clause on a custom order, or for that matter your general distrust of the legal and insurance industries.
Quote:
I disagree that "it's not that difficult to understand whats going on if you do a little research", perhaps not for you, but not everyone is not like you....
If you are running a business and do not know how (or do not want to) interpret legal contracts then you should have access to someone who does, otherwise you are flying blind from a legal perspective.
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