Since Covid-19 struck, it is no longer unusual to hear of engaged couples whose wedding date had been fixed, whose invites had gone out long before and who had paid for everything already including the total venue costs - only for unexpected Covid-19 regulations to suddenly be implemented squashing all their romantic plans in one, fell swoop.
The big question is, now that the wedding had to be cancelled, can the couple get their money back?
Yet again with the recent amended Covid-19 regulations declared at the end of December 2020, many weddings had to be postponed or cancelled on short notice. It is important to know your rights if you already paid the wedding service providers and the wedding is now cancelled due to the change in regulations.
The Regulations issued in terms of the Disaster Management Act, defines a gathering as follows:
‘gathering’ means any assembly, concourse or procession in or on—
(a) any public road, as defined in the National Road Traffic Act, or
(b) any other building, place or premises, including wholly or partly in the open air, and including, but not limited to, any premises or place used for any sporting, entertainment, funeral, recreational, religious, or cultural purposes; but excludes a workplace and a place of residence for those persons ordinarily residing at the residence.
The amended level 3 lockdown regulations that are now in force, prohibits most gatherings or social gatherings, including weddings.
Many contracts with service providers, like the wedding venue, will contain a force majeure clause. Force majeure refers to an event or occurrence, which renders contractual performance impossible. The term is synonymous with the term vis maior.
Force majeure clauses allow a party to a contract to escape the normal consequences of non-performance or late performance of their obligations in terms of the contract, because of an unforeseeable or unavoidable event. This can include acts of God, acts of government, natural disasters, epidemics, pandemics, terrorism or even war. The clause will allow a party to suspend its obligation in terms of the agreement for the duration of the force majeure event.
If, however, there is no force majeure clause in the contract with a wedding service provider, and the service provider refuses to refund the money paid when a wedding is cancelled due to the new regulations, the other party has a possible claim against the service provider based on the legal remedy known as unjustified enrichment.
The term "unjustified enrichment" is used to describe the situation which occurs when one party is enriched and the other party correspondingly impoverished, while the enrichment is at the expense of the impoverished party and unjustified, that is, without there being a legal ground for the retention of the enrichment by the enriched party. From the fact of such unjustified enrichment an obligation arises by operation of law in terms of which the enriched party has, in specified circumstances, a duty to restore the enrichment to the impoverished party up to the level of the latter's impoverishment.
This means if you paid a wedding service provider and the wedding could not proceed due to the force majeure event (in this case, Covid-19), the wedding service provider might have been enriched at your expense, and you might well have a claim based on unjustified enrichment against them.
Most probably the claim will be against the venue provider, band or other service providers who has not performed their obligation prior to the cancelation of the wedding. Unfortunately, if the service provider already performed, such as delivering the wedding cake, no enrichment claim will be possible.
Each matter will have to be judged on the relevant facts and it is best to contact an attorney to advise you on a possible claim.