Why Partial Performance is Key in Wedding Contracts

Lessons from an Attorney-COVID-Bride

Two hundred loved ones, thirteen villas, three pools, the world’s fastest violin player, a pasta making station, and homemade limoncello. Our Italian-themed destination wedding was set to take place on May 9, 2020, in Palm Springs, California. I had spent the larger part of 2019 designing the vision and selecting the best vendors. Before Contract Nerds, this wedding was my baby.

Two months before, the pandemic strikes.

“It’ll be fine in a couple of weeks,” I prayed. By April, my venue called to say they were legally restricted from opening the property up for events, and we would have to reschedule. No matter how much I tried to create the perfect plan, and it was a pretty solid plan, it was not strong enough to withstand the force that is COVID-19.

The only thing left to do was accept reality and go into problem-solving mode. Aside from a broken heart, the most significant risk of a canceled wedding is the financial loss. So I did what any bride, groom, or attorney would do in this situation, and I looked to my venue agreement. In this article, I’ll generally refer to any event or venue agreement (including mine) as a “Wedding Contract.”

To skip my story and go straight to my tips on negotiating partial performance terms in Wedding Contracts, click here.

First Wedding – Standard Force Majeure

My Wedding Contract included a right for the venue to cancel due to force majeure and an obligation on their part to provide a full refund of all deposits paid.[1]  Of course, it would have been better if the force majeure clause was mutually applicable, but wedding venues have more bargaining power than brides (even attorney brides) due to their high demand and low supply. In my case, the force majeure clause was sufficient to trigger the venue’s duty to provide me with a full refund. That gave me the upper hand to negotiate better contractual terms for the second wedding.

Second Wedding – Updated Force Majeure

Initially, the venue sent me a new Wedding Contract that was a copy/paste of the original one. There were a couple of issues with this. The new Wedding Contract did not reference the original agreement or the original wedding date. It was as if the first wedding never happened. Also, the force majeure clause was not updated to reflect current realities, e.g. it did not list COVID or pandemics as a potential “act of God.” Now that I had a little more bargaining power, I made sure to negotiate additional protections in anticipation of the very real risk that our wedding could be canceled again. These included:

1) adding a mutual right to invoke force majeure and receive a full refund,
2) expressly naming COVID-19 as a force majeure event, and
3) preserving the historical background of the deal by using an amendment rather than a whole new contract.[2]

Holding on tightly, we rescheduled our wedding to September 9, 2020.

Third Wedding – Updated Force Majeure + Partial Performance

Three is my lucky number because my birthday is on March 3^rd. When I called to cancel the second wedding, I had to keep reminding myself that three is my lucky number. Despite the venue’s push to reschedule, it was time to put this wedding plan to bed. Don’t worry, I’m not giving up. In fact, I have my eye on a smaller, more local wedding venue. This time, instead of just negotiating a better force majeure clause, I am also going to negotiate for partial performance.

Tips for Negotiating Partial Performance in Wedding Contracts

Force majeure was a popular go-to at the start of the pandemic when the government shut down all event venues and outlawed weddings.  Back then, we asked black and white questions like: “Can we still get married?” But force majeure, alone, is no longer sufficient protection. Why? Because venues and service providers are adapting to the restrictions and limitations, finding creative ways to perform their duties.

Today, couples in most regions can have a church ceremony. In some cities, small dinner weddings are allowed. Depending on the venue or location, guests may be required to wear masks. But, it is possible to get married. Therefore, the new questions swirling in our minds as we plan events are, “Are we ok with getting married like this?” or “Should I still have to pay the same venue fees if my guest count is cut in half?” That is where partial performance comes in. Partial performance is when a party can fulfill part of their obligations. 

To account for the scenario in which force majeure is not applicable because the venue can partially perform their duties, Wedding Contracts should include solutions or remedies to address each potential variable. Here are a few tips to keep in mind when negotiating a Wedding Contract post-COVID.[3]

• Identify your deal breakers and tie them to a right to postpone or cancel. For example, if you absolutely do not want to have a wedding where guests are required to wear a mask, then build a provision in stating you can postpone or cancel your wedding if guests are required to wear masks 30-days out.
• Watch out for minimums based on guest count or food and beverage spend. Chances are, the number of guests who show up is going to be a lot less than expected. Negotiate a low number or tie the minimum to the maximum allowable by law 30-days out.
• Allow yourself ample runway for planning purposes. It is not always possible to wait until the day before the wedding to decide whether you want to move forward or not. Don’t tie provisions to requirements on the day of the event, but instead X number of days before the event.
• Itemize fees and costs if you need to request a pro-rata refund based on a lower guest count. For example, if a venue offers a $10,000 wedding package, ask them to provide an itemization detailing exactly how those fees are distributed against the various offering, i.e. chairs, tables, table covers, glasses. Make sure you understand the per-item cost of what you’re purchasing.

While no one can predict COVID-19’s lasting impact on future weddings and events, Wedding Contracts can and should anticipate and solve for the foreseeable risk of partial performance.

[1]  My Wedding Contract included the following force majeure clause: “If, for any reason beyond its control, including, but not limited to, strikes, labor disputes, accidents, government requisitions, acts of war or acts of God, the Venue is unable to perform its obligations hereunder, such non-performance is excused and the Venue may terminate this Agreement without further liability of any nature. In the event of such termination, the Venue shall promptly return any deposit or payment made by the Client.”

[2] The amended force majeure clause read like this: “If, for any reason beyond Client’s control, including, but not limited to, strikes, labor disputes, accidents, government requisitions, acts of war or acts of God, or pandemic, the Event cannot reasonably be carried out as planned or it becomes impractical or difficult to carry out the Event as planned, the Client may terminate this Agreement without further liability of any nature. For clarity purposes, this clause applies to COVID-19 and government regulations, restrictions or limitations related thereto, regardless of the parties’ awareness of this risk at the time of signing this Amendment. In the event of such termination, the Venue shall promptly return any deposit or payment made by the Client.”

[3] These tips can apply to any type of venue or event agreements, including weddings, concerts, bar mitzvahs, birthdays, and sporting events.