Venting And Question: Only A Hobby.. But..

Decorating By Michelle84 Updated 14 Nov 2011 , 12:44am by jason_kraft

Michelle84 Posted 27 Oct 2010 , 10:15pm
post #1 of 17

can I still have a contract?

At the moment I'm trying to build up a portfolio of cakes, and hopefully in a couple of years I'll develop it into a business (at the moment I'm a stay at home mum to a 16 month old).
I only do cakes at cost or give them as gifts (if it's a party I'm invited to and I'd be buying them a present anyway). I still try to run myself professionally and I use CakeBoss to keep track of things.

Two weeks ago my best friend returned home from London and we discussed a cake for her birthday in December (now only 6 weeks away). We chose flavours and discussed colours and designs. We settled on Pina Colada (pineapple/coconut) for the top tier and Strawberry Lemonade for the bottom tier. She wanted it to look amazing so I drew up some designs and said I'd add a 3rd dummy tier at the bottom. The whole thing would be a gift as I hadn't seen her in over a year, and well, she's my closest friend and has been for years.

Yesterday I sent her a text saying I had purchased some gorgeous decorations and asked her if she was wanting to pick the cake up the night before or the day of the party.
She replied and said she has decided to move down the coast (about 8hrs drive) and that she may not even be here for her birthday, but thanks anyway and she'll let me know closer to the date.

I'm really annoyed. I sent her back a text saying I wish she'd told me BEFORE I purchased things and worked on the designs with her etc. Her reply text said she was really sorry and that she'll try her hardest to be here for her birthday.

I'm sorry, but that isn't good enough for me. I KNOW I'm only a hobby but I like to keep myself organised and will "black out" a weekend if I already have a cake booked.

Am I allowed to have a contract or is this something only allowed for legal businesses who make profit? I don't want to be taken advantage of, and I want people to know that my time is still important.

16 replies
Kitagrl Posted 27 Oct 2010 , 10:27pm
post #2 of 17

Could you do something where you have a contract and they give you $100 to hold the date....and then when you deliver, you return the $100 so it ends up being free, but if they back out, then you keep the money?

I don't know the legality but I don't see why not...if you deliver a cake, it ends up being free....if you don't deliver a cake...well then you didn't sell anything illegal but you got to keep the money to cover for your problems....

????

VaBelle Posted 27 Oct 2010 , 10:50pm
post #3 of 17

I'm not a legal expert, but I would think yes you could. People who rent out properties on their own have contracts and they're binding in small claims court. I don't think you can charge though. The OP's option of a deposit would be a good idea or charges only for supplies bought if cake is canceled. You may want to check out some legal wording or ask a lawyer for a set of eyes to make sure what you're saying is legal and there's no loopholes.

kelleym Posted 27 Oct 2010 , 11:12pm
post #4 of 17

I'm not sure that you can have a contract for a gift. True gifts, as Judge Judy is always pointing out, are given "without strings". You can't place conditions on them.

It really sucks that your friend flaked out on you, but I think this is just more a case of a thoughtless friend. Also, in her mind, December is a long way away, and she probably had no idea that you would go shopping so soon.

In the future, with gifts like this, I would just have a final conversation with the friend and say, "I am going to go buy supplies for this cake, so I wanted to be 100% sure that you want it the way we talked about.

I am really sorry that she did that. She sounds sorry, and since she is your closest friend, maybe she really means it when she says she will try her best to be there. *hug*

jason_kraft Posted 28 Oct 2010 , 12:18am
post #5 of 17

You can certainly write up a contract between individuals if there are no businesses involved, just make sure you include your name on the contract instead of a fictional business name that may not be registered. But when making a contract, you need to decide if you really want to enforce it. For example, if you had a contract with your friend, would you be willing to take your friend to court to recover the cost of your ingredients?

You also need to look at whether or not it is legal to sell cakes (even at cost) in your area. In most US states that do not allow commercial home baking, it is against the law to accept any form of compensation for cakes made at home. I don't know what the laws are like in Australia so you would need to look that up. If I was selling cakes illegally, I probably wouldn't want to go to court to attempt to enforce a contract.

kelleym Posted 28 Oct 2010 , 12:29am
post #6 of 17
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In US states that do not allow commercial home baking, it is against the law to accept any form of compensation for cakes made at home.




Jason, Jason, Jason. icon_rolleyes.gif This is not true. The law in Texas is certainly not written this way, and every state's laws vary. You should always check with your own local regulators to find out how you can follow the law in your state or county.

jason_kraft Posted 28 Oct 2010 , 12:35am
post #7 of 17
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Originally Posted by kelleym

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In US states that do not allow commercial home baking, it is against the law to accept any form of compensation for cakes made at home.



Jason, Jason, Jason. icon_rolleyes.gif This is not true. The law in Texas is certainly not written this way, and every state's laws vary. You should always check with your own local regulators to find out how you can follow the law in your state or county.



The web site linked below says "In Texas it is currently illegal to sell any food that was made in a residential kitchen".

http://www.texascottagefoodlaw.com/

I believe that's your web site?

kelleym Posted 28 Oct 2010 , 12:44am
post #8 of 17
Quote:
Originally Posted by jasonkraft

The web site linked below says "In Texas it is currently illegal to sell any food that was made in a residential kitchen".

http://www.texascottagefoodlaw.com/




§229.167 (E)(10) Private homes and living or sleeping quarters, use prohibition. A private home, a room used as living or sleeping quarters, or an area directly opening into a room used as living or sleeping quarters may not be used for conducting food establishment operations.

I oversimplified my statement on my front page, thanks for nudging me to clarify it.

KoryAK Posted 28 Oct 2010 , 2:00am
post #9 of 17

I know this was frustrating from the standpoint of you wanting to do something nice for your friend and now you don't get to, any maybe from the design time that will now not be used on this cake (hey, take that great design and sell the next guy on it!) but as for the purchasing that will now go to "waste" well, since this wasn't someone paying you would have spend that time any money ANYWAY. Just take the time you are saving by not making the cake or putting further effort into it and do something relaxing for yourself icon_smile.gif

Michelle84 Posted 28 Oct 2010 , 6:14am
post #10 of 17

Okay I've calmed down about the issue - thank you guys so much for your replies!

In future I will double check, triple check and check again before I go buying supplies for any cakes. I'll leave buying supplies until 2 weeks before a cake is due, and from now on when they order a cake I'll have them agree to cover the costs of all supplies purchased, even if they cancel the cake. I think that's only fair.

Jasonkraft - thanks, I didn't realise that! I only thought it was illegal to sell cakes and make a profit from an unlicensed kitchen, I have no idea where the law stands on cakes at cost. I'll definitely look that up asap.

Mietta Posted 13 Nov 2011 , 1:24pm
post #11 of 17
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can I still have a contract?




You can have all the informal contracts you like.

But the short answer re a commercial contract is no, if you are not carrying on a business (which you have already stated that you aren't) you cannot enter into a commercial contract. The ATO outlines the rules in relation to this so you can check their site for further details if you wish.

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Jasonkraft - thanks, I didn't realise that! I only thought it was illegal to sell cakes and make a profit from an unlicensed kitchen, I have no idea where the law stands on cakes at cost. I'll definitely look that up asap.




I'm afraid the poster is dead wrong on this one. As an Australian resident who runs her own food business and has done so in various parts of Australia, I can assure you of this. US laws have no jurisdiction here.

Running a food business from home in Australia is dependent on where you live. By and large, it is not illegal to run a food business from a residence in Australia but you must be aware of certain conditions that may apply and to ensure you are compliant with them.

I know this thread is old but I contribute just in case this is read down the line.

jason_kraft Posted 13 Nov 2011 , 5:03pm
post #12 of 17
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Originally Posted by Mietta

I'm afraid the poster is dead wrong on this one. As an Australian resident who runs her own food business and has done so in various parts of Australia, I can assure you of this. US laws have no jurisdiction here.



No one in this thread has said that US laws have any jurisdiction in Australia, in my earlier post I suggested researching Australian law on the subject.

Mietta Posted 13 Nov 2011 , 11:04pm
post #13 of 17

Jason you did make a direct inference in your post that to bake at home and obtain compensation for same was to work illegally. Had you not meant to infer this, then you should have corrected the OP when she made the responding comment.

Over and out.

scp1127 Posted 13 Nov 2011 , 11:15pm
post #14 of 17

Mietta, He did not write that. What a way to begin your CC adventure.

Mietta Posted 13 Nov 2011 , 11:34pm
post #15 of 17

*sigh* You assume I'm new because...? Oh because I have x amount of posts? icon_smile.gif I'm not here for oneupmanship. But I'm a stickler for correct information because I know people use this place as a veritable bible and to that end I add the following and then I am done:

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You can certainly write up a contract between individuals if there are no businesses involved, just make sure you include your name on the contract instead of a fictional business name that may not be registered. But when making a contract, you need to decide if you really want to enforce it. For example, if you had a contract with your friend, would you be willing to take your friend to court to recover the cost of your ingredients?




This is a quote containing advice made in a thread relating to Australian law. And, as such, the information contained within that quote is not correct. In Australia there are several glaring variables relating to non commercial contracts - you can't just write one up and hope that it will stand as there are certain things you can and cannot do which to define would lean away from the format of this forum. In addition, we don't have fictional business names and not all businesses or business names require registration. To further muddy the waters, there are various forms of registration that relate to the carrying on of a business in Australia.

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If I was selling cakes illegally, I probably wouldn't want to go to court to attempt to enforce a contract.




This is the direct inference that pertains to the assumption that the OP is selling cakes illegally. If this was not meant then it requires clarification.

What a way to make friends and influence people, scp icon_biggrin.gif

scp1127 Posted 14 Nov 2011 , 12:26am
post #16 of 17

Not worth my time.

jason_kraft Posted 14 Nov 2011 , 12:44am
post #17 of 17
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Originally Posted by Mietta

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If I was selling cakes illegally, I probably wouldn't want to go to court to attempt to enforce a contract.



This is the direct inference that pertains to the assumption that the OP is selling cakes illegally. If this was not meant then it requires clarification



Your inference of the implication of my statement was incorrect, and I did not see the reply from the OP until your most recent reply to the thread.

The portion of my earlier post about writing up contracts was in response to a point brought up by kelleym. Later in that same post I said that I didn't know what the law was in Australia so that would need to be researched. I probably should have been more clear that the first part of the post was in reference to US law.

You seem to know a lot about running a business in Australia and I'm sure the OP appreciates your post, just try to stick to the facts in the future. icon_smile.gif

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