Deposit on custom?

The judge obviously didn't understand the difference between
Wal-Mart and your fathers custom made product. This is a
distinction that is vitally important if you want to win such
cases. 

In the eyes of the Law, there is no difference between Walmart and a
shop making custom jewellery.

Judge can only consider what is in front of him (facts) and apply
the law. Contract is an agreement between two parties. If contract is
not written, it will be up to the parties to show what each party has
agreed to. If something is not explicitly spelled out, it is not
considered unless there is a precedent.

From practical point of view, it is not possible to write detailed
contract every time custom order is discussed. So interview your
client and understand what is that actually needed. And if sometimes
client change his/her mind, be gracious about it. From my
experience, they will be back later. Cancelled orders are simply a
part of the business.

Leonid Surpin

David,

... and if it was parked outside I would go out and OOH and AHH all
over it. Then I'd go back in the store, offer her a glass of wine
and find a stone that matches it, set it down on top of the ring I
had been making for her and then sketch out a matching pair of
earrings, while my office help drags their feet writing the refund
check.

I like your strategy. It took me a long time in my business to be
able to set my anger and ego aside when dealing with certain
situations and make the best decision for the business. I’ve found
that thinking like this permeates other parts of my life and makes
other relationships smoother too (teenagers).

Jamie

In the eyes of the Law, there is no difference between Walmart and
a shop making custom jewellery. 

Actually, there is a huge distinction. Now, I have to be clear about
this as I only studied law for 2 years, and it was Canadian law of
course but the facts remain. Wal-Mart is a retailer ONLY, with the
exception of those Wal-Mart’s operating an automotive service
center. In which case service industry regulations apply to that
part of the store only. A jewellery shop is often a service shop as
well as a retailer. When I studied law this was a big distinction.
Service industries and service shops fall under special
consideration under the law. Retailers lack this special protection.

Judge can only consider what is in front of him (facts) and apply
the law. Contract is an agreement between two parties. If contract
is not written, it will be up to the parties to show what each
party has agreed to. If something is not explicitly spelled out, it
is not considered unless there is a precedent. 

While this does vary from region to region, in many cases the law as
it regards service industries sets out some very distinct and
special conditions on both written and verbal contracts. In cases of
a verbal contract, the exchange of money is prima facie evidence of
a contract. Again, some regions don’t have these allowances for
service industries, but in those areas that do, money changing hands
is almost always considered evidence of consideration for service
and therefore by extension proof of a verbal contract. If the
contract is verbal in nature only, this is where things can get very
difficult. It is always best to have your terms and conditions in
writing and signed by the customer on acceptance of the conditions.

From practical point of view, it is not possible to write detailed
contract every time custom order is discussed. So interview your
client and understand what is that actually needed. And if
sometimes client change his/her mind, be gracious about it. From my
experience, they will be back later. Cancelled orders are simply a
part of the business. 

I readily agree that everyone should be considerate and gracious
about special circumstances on the part of the client. Sometimes
things happen that simply can’t be avoided. However, to say that a
contract can’t be written up each time is setting yourself up for
problems. That is the practical point of view. You can easily sit
down with a lawyer and write up a general contract to cover most
situations, and easily make changes as required to suit special
customers. The time you take to interview the customer, and discuss
the job is not lengthened to any degree by adding a written
contract. I learned this quickly, and as a consequence, all my jobs
are now accompanied by a contract. Larger jobs require some
negotiation, smaller jobs are generally covered by the standard
contract.

What I am trying to say is that you absolutely NEED to consult a
competent attorney in your area and know what the law allows and
doesn’t allow for YOU in your area. If you are in one of the areas
that does not have laws concerning service providers, you will be
left using your best judgement in how to handle each case on a
person by person basis. If you choose not to do adequate discovery,
you are setting yourself and your business up for headaches down the
road.

Frank Spencer

From practical point of view, it is not possible to write detailed
contract every time custom order is discussed. 

Why not? Common contract language can cover all the basics, and
reference an addendum for a particular project when needed.

Al Balmer
Sun City, AZ

However, to say that a contract can't be written up each time is
setting yourself up for problems. That is the practical point of
view. You can easily sit down with a lawyer and write up a general
contract to cover most situations, 

There is a joke which says that “a contract is multi-page document
which is difficult to read and nobody knows what it is exactly says”.
I am a jeweler, not a lawyer. If client cannot continue with a
project, I consider time spent as an investment in public relations.
In the long run it more productive that legal route.

Leonid Surpin

Why not? Common contract language can cover all the basics, and
reference an addendum for a particular project when needed. 

I agree. Why not? Everyone reading Orchid has a computer, or access
to one. Why can’t you save those contract sections dealing with
specific situations on your PC and simply insert them as needed?

Mike DeBurgh, GJG
Henderson, NV

If the law in that jurisdiction allows such things, then the law
needs to be changed. NOW. 

The judge is the very one that decides whether the law allows such
things or not. If he or she thinks it is allowed, then it’s
allowed. In essence, their very word is the law. Our opinion, or
even the opinion of an attorney as to what the law says or doesn’t
say, really doesn’t matter, in their court at least. An attorney can
only try to convince a judge of what the law says and how it applies
in a particular case. They have no say in what the judge finally
decides.

In Dad’s case, it wasn’t the law, it was the judge’s interpretation
of the law, and the woman’s ability to really perform the “poor,
poor, pitiful me” act. Judges have an incredible amount of leeway
when it comes to interpreting the law and can, and sometimes do,
decide the law just doesn’t mean what you or I or even the
legislators that wrote the law might think it means. Sure it’s
possible to appeal, but that costs money, and there’s no guarantee
that an appellate judge will overturn another judge’s verdict,
especially if they play golf together.

The only way to change the mind of such a “free thinking” judge, is
to change the judge at the next election, unless they are appointed,
then we have to change the appointer. If it’s a lifetime appointment,
well, I guess we just have to wait it out. This sort of thing happens
at every level of court in the country, all the way up to the Supreme
Court. It is sometimes referred to as “legislating from the bench”.
It is specifically prohibited by the Separation of Powers clause of
course, but who’s going to stop it if not the voters? Because of the
Separation of Powers clause, no one, in any other branch of our
government can. Once a judge is in their seat, they are there until
their term ends, and can rule however they please on any case that
comes their way, unless they are impeached or recalled. That takes
some doing by a whole lot of really unhappy people, and even then,
the odds of them staying are in their favor.

My wife and I do volunteer work as Guardians ad Litem, which is
essentially advocating for neglected and abused children in court, so
we spend quite a bit of time in court, and preparing for court. It is
absolutely amazing to me how two judges can look at the same child,
the same parents, the same laws and come to radically different
conclusions. One judge will see a child that has been physically and
mentally abused by a drug addicted parent and conclude that the
parent should never be allowed to be left in the same room unattended
with that child again. Another judge will see the very same child and
issues and see the parent as a victim of their circumstances, and
that after receiving the proper counseling should be reunited with
their child at the earliest opportunity. Which one is right? The last
one to hear and decide the case.

Fortunately for the kids involved it’s not quite that simple, but
the final outcome still boils down to which judge finally decides the
case. And there are judges who’s decisions make our skin crawl.

Like I said, court stinks. It’s an absolute roll of the dice. There
are good judges and bad judges (the good ones far outnumber the bad
ones), and until you go before them, you don’t know which one you’ll
get. With one judge you win, with a different one you lose. Doesn’t
affect the judge one way or the other, until election day, and if no
one is paying attention, it doesn’t even matter then. All in all,
it’s a good system; I wouldn’t trade it for any other. Justice is
served the vast majority of the time. But still, it is what it is.
Avoid putting yourself at the mercy of the court if you can. You
might have a great case and win big. But you just might roll snake
eyes.

As a post-logue, after Dad’s case was decided and we were on our way
out of the courtroom, the lawyer apologized and told us that he had
been sure it was going to be an easy win. We got his bill a few days
later. Guess he figured that Dad’s case really was a good one. It
seems his time was worth something, quite a lot in fact, even
though his customer got nothing of value out of it. Incidently, the
judge was soundly defeated in his next bid for re-election. Seems Dad
wasn’t the only one to get screwed.

Dave Phelps

There is a joke which says that "a contract is multi-page document
which is difficult to read and nobody knows what it is exactly
says". I am a jeweler, not a lawyer. If client cannot continue with
a project, I consider time spent as an investment in public
relations. In the long run it more productive that legal route. 

I am familiar with the joke. I spent my first year repeating that
over and over again. It gets easier with time. But, as you say you
are a jeweller not a lawyer. As it should be.

In many, if not most cases you and the customer will come to
ammicable terms and move on. As you say, a lesson in public
relations. I am sad to say though that there are a great number of
people who are just as eager to take you to court as discuss
something with you.

Also, when I say that my time is worth money to me, I bloody well
mean it. This is set out clearly in my contract. I’m happy to take
the time to discuss the ins and outs of a job with a client at my
own expense. Once the job details are finalized though, I’m on the
clock and I don’t take kindly to having my time wasted when it could
be spent on another contract making money without all the hassle.

This is what my contracts specify and I make sure the customers are
very aware of this. I want them to be sure they know what their
obligations are. Just as they want to be sure I know what mine are.
If the customer suffers financial reversal or has some other
difficulty arrise I am happy to deal with them and come to an
understanding. More of that public relations.

On the other hand, having product in stock that I didn’t want is not
compensation as I may be unable to move that stock. Not to mention
that I have indeed missed the opportunity to make money with a
different client.

I find that the security of a contract not only protects my
investment in time, but reassures the client that there are
guidelines that we both have to follow for the successful completion
of a job. There are no surprises. Anything that needs change
involves readdressing the contract.

Also there are penalties in my contract that guarantee certain
protections for the client. Things like my eating the cost on
damaged items, a guaranteed completion date with time penalties and
other items.

In the end, both of us have something that we can rely on and know
is there to protect each of us.

Frank

why dont we all post our contract/agreement language for critique
and forum overview?

goo

Hi Gang,

All the comments about lawyers reminds me of a joke.

Do you know how to tell when it’s cold out?

The lawyer comes out of his house with his hands in HIS pockets.

Dave

Dave Phelps,

I read with great interest your entire posting, and I can say
without reservation that you are absolutely correct. In some areas
the judge often plays fast and loose depending on the sort of day
they are having or the behaviour and conduct of the litigants.

I also agree with you that I wouldn’t trade the system for anything
else. Yes, sometimes it stumbles, makes mistakes and even sometimes
is dead wrong but by and large it is a better system than most.

I suppose that in Canada we have less of an issue with individual
judges making up the law as they go. It’s been my experience here
that the vast majority of them take very seriously the intent of the
legislators who made the laws. Although there have been numerous
occasions where judges have set precedents, for the most part it
seems to have been with an eye toward justice. Which isn’t to say
that we don’t have bad judges from time to time and place to place.
It just seems that they get quiety avoided once their biases become
well known.

I have seen the very thing you describe in family court here as
well, and its a very difficult call to make as family court and the
welfare of children in general is an issue fraught with emotion and
prejudice. It’s never an easy thing to decide on the fitness of a
parent versus the welfare of a child. Unfortunately this isn’t the
venue for that sort of discussion.

As I said previously I can only speak from my experience, and thus
far mine has been very good when it comes to contract litigation and
getting sued. It doesn’t happen often, but so far when it has
happened my contracts have been upheld. I wish to make it clear
though that I have only ever gone that route when a client is
unwilling to deal with a situation, makes completely unrealistic
demands or initiates litigation without first voicing their
displeasure to me. In these uncerrtain financial times it seems more
and more people are willing to forego nicities and head directly for
a court room.

Oh, and I do agree about avoiding court if at all possible. It can
be made easier to deal with. As you have shown though, sometimes it
just doesn’t matter and you get a rotten judge. Snake eyes.

All the best Dave.
Frank

why dont we all post our contract/agreement language for critique
and forum overview? 

It sounds like a good idea until you realize that we are all over
the world. Not to mention that even in the same country the law can
differ from region to region.

As I said in one of my other messages, it is important for each
person to discuss their needs with a competent lawyer in their
particular state/province and in some cases, even their county.

While many of the ideas can hold up, in some areas they wouldn’t be
worth the paper they are printed on. The ideas of justice tend to be
universal. The practice of justice on the other hand can often take
one by surprise.

A wonderful comment was made concerning judges and how their outlook
on a given situation can change a ruling. While that has been
uncommon in my experience, for others it is an all too common
occurrence.

So, again I fall back on the tired, but practical advice of “consult
a lawyer in your area”.

Frank

It sounds like a good idea until you realize that we are all over
the world. Not to mention that even in the same country the law
can differ from region to region 

I personally would like to see what others have on thier work orders
concerning deposits If they are willing to post it so i will go
first in hopes that others will follow and i might add to my scope
of understanding, mine goes somthing like this -

The following is an agreement for a custom made jewelry item, design
time, shop costs and materials. It must be assumed / implied that
upon acceptance & payment of your custom made jewelry item the client
is satisfied. The client may recieve a refund during & prior to
completion of thier special order less the restocking fees owed to
suppliers, design time and shop time spent on thier custom order,
refunds cannot be paid after the custom order has been completed.

we warranties all work for manufacturer defects but do not warranty
against abuse, overpolishing, alterations and failure due to years
of wear.

we kindley ask that your newly purchased jewelry item stop by for
cleaning and inspections 30 days after pick up and to see how the
item is working out out for you

goo