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Mouthy Money Your Questions Answered panelist Paul Britton answers a reader’s question about how to get a refund for money paid to a wedding caterer who died before the day.
Question: The caterer for our wedding tragically died just before the day, after we had made all the payments of around £3,500. We don’t have much information on the death, and as sensitive as the problem is, what recourse do we have to recover our cash? As far as we are aware they were operating as a sole trader. TM, Carlisle
Answer: You may be able to settle the outstanding money quickly and simply by contacting the caterer’s estate. If this doesn’t happen, however, you may have to claim back the money through legal action.
The first thing to do is look at your contract, if you had one, to find out what obligation each party has and the best way to settle the contract. Even if it’s not a written contract, but a verbal one, the same rules apply.
It should have details about what happens if the caterer, or the people employing them (you and your partner), die before the work is conducted.
While this will be unique to the contract you had, the most common terms are an automatic termination on the death of either party, or the right to terminate, where either party may terminate the contract but it needs to be performed until terminated.
Although they sound similar there are two key differences. The second example requires the surviving party – you – to take steps to terminate the contract as it won’t happen automatically. You can usually do this by serving a notice to the caterer’s estate or following the termination clause in the contract.
You should also find details in the contract about what happens to any money already paid out, as in your case.
It may say that the caterer’s estate can keep any prepayment you’ve already made, even if the obligations were not performed. If it says this, it will limit your ability to claim for breach of contract and get the money you’ve paid out back.
Yet even if this is the case, statutory and common law control a party’s ability to limit its liability so this doesn’t mean it’s impossible to have the money returned to you.
It might also be considered a ‘frustrated’ contract.
A contract can be terminated on the grounds of frustration if something happens after it’s made which mean it’s no longer possible to finish.
For something to be considered ‘a frustrating event’ it needs to have happened after the contract is entered into, be a fundamental act that strikes at the root of the contract, be no fault of either party, and it needs to make the contract impossible, illegal or radically different from when the parties first entered into the contract.
You, as the surviving party, could argue that a frustrating event has occurred. This is because, the caterer died after the agreement was formed, the death goes to the root of the contract and was unlikely to be contemplated or foreseeable by the parties at the start of the contract, it was not the fault of either party, and it’s now impossible for food for the wedding to be provided by the caterer.
If it’s decided that a contract is frustrated it means neither party is obligated to comply with its terms and if any further funding is due it is no longer payable.
Money already paid can also be recovered. This comes if the Law Reform (Frustrated Contracts) Act 1943 (the “Frustrated Contracts Act”) applies. The Frustrated Contracts Act states that money paid before the frustrating event (death) can be recovered.
If this happens the money will need to be paid to you by the caterer’s estate.
Once you’ve read the contract, especially any clauses dealing with death, frustration or liability, you then need to contact the representatives of the caterer’s estate to see if an agreement can be reached and your money can be refunded.
If you had wedding insurance, it’s also worth checking your policy to see if you can recover the money through your insurer.
As a last resort, if you aren’t able to come to an agreement with the estate, you will need to issue a debt claim through the caterer’s estate. Also known as a money claim. You’ll need to pay court fees for doing this which will be around £200.
Paul Britton, director and solicitor at Britton & Time
About our expert: Paul Britton is a top litigation legal expert and founder of Britton & Time, a multi-award-winning law firm based in Brighton & Mayfair. Paul graduated from the University of Law, Guildford in 2014 and has been qualified as a solicitor since 2017. Coming from a multi-legal background, Paul supervises all practice areas at Britton & Time. Paul primarily works on litigation matters, both civil and criminal, family issues, employment matters and landlord and tenant dispute, and continues to act for clients on a variety of matters both from the Brighton & Mayfair office.
Mouthy Money Your Question Answered compiled by Rebecca Goodman
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Paul Britton is a top litigation legal expert and founder of Britton & Time, a multi-award-winning law firm based in Brighton & Mayfair. Paul graduated from the University of Law, Guildford in 2014 and has been qualified as a solicitor since 2017. Coming from a multi-legal background, Paul supervises all practice areas at Britton & Time. Paul primarily works on litigation matters, both civil and criminal, family issues, employment matters and landlord and tenant dispute, and continues to act for clients on a variety of matters both from the Brighton & Mayfair office.