WILLIAMS said:
We were married in the state of Illinois a year ago. A "friend" of my husbands took pictures for us. She did this for us as a wedding present, but, now a year later, we are still waiting for our picutures. All we gotten for the past year is a variety of excuses and the run around whenever we attempt to get the pictures. We have offered to get the film developed ourselves and offered her money for them and have gotten nowhere. She has assured us that nothing has happened to the pictures, but, we after all this time, we are finding this hard to believe. My question is...even though we did not pay for her services, do we still have a verbal contract and are we able to take any kind of legal action? Thank you.
My response:
In order for a contract to be enforceable, you must have these essential three basic parts.
First, an offer: "I would like take your pictures for you at your wedding."
Second, is acceptance: "Sure, we'd love to have you take our pictures at the wedding."
Third, is consideration: Consideration is something of value passing between the offeror (the photographer) and the offeree (You). Consideration spans the full spectrum, from money passing between the parties, to promises of future events to occur, and even mutual love and affection, along with the continuation of that love and affection, can be labeled as consideration for a contract.
However, in this instance, I don't believe you have a contract because you're missing the third element - -consideration.
You see, you said it yourself, that the taking of the pictures was a "gift" to you and your husband. The promise of a gift is not a contract. For a gift to be a gift, it must be given freely without consideration, promises of future events, and without reservation or strings attached.
For example, I'm sure other people at your wedding gave you gifts; a blender, a muskrat trap, a toaster, four new tires for your pickup truck, etc. When given, nothing was expected in return for those gifts, except perhaps a thank you cards written on the dried hide of those squirrels you shot 3 months earlier. Also, as you can imagine, gifts can take almost any form, from tangibles (things you can see, feel and touch) and intangibles (such as an insurance policy).
If someone came to your wedding, who said they were going to bring you a gift, but didn't, you might be upset with that person - - but, you certainly cannot sue that person because they failed to give you a gift.
Well, the same thing holds true here. This person promised you a gift; a gift of pictures. But, she never gave you that gift. Since she never gave you a gift, and since a gift is never "owed", you cannot sue her for failing to give you the pictures.
Then you might ask, "What good are the pictures to her?" That's not the point. They are her property until such time as she is willing to freely "give" them to you. Until such time, you cannot "force" her to give the gift.
IAAL
[Edited by I AM ALWAYS LIABLE on 12-01-2000 at 07:16 PM]
