15% added for parties of 6 or more, legally enforceable?

Factual Questions
21

[QUOTE=DSYoungEsq]
None of that is in the contract.
[/QUOTE]

I agree, although, we mustn’t forget the perfect tender rule.

Here is the UCC version:

(Emphasis added.)

This means you can send the food back as soon as you discover it isn’t what you ordered (or what was advertised). You shouldn’t be required to pay for that food. You can’t eat it, and then on your way out, refuse to pay (under 2-601 and 2-602, anyway), and you can’t refuse to pay (under 2-601 and 2-602) for bad service. These sections apply to goods. I suppose you could argue that the delivery was not as promised under some circumstances.

As DSYoungEsq points out, though, you won’t find many published cases dealing with this specific issue.

22

[QUOTE=DMC]
Certainly, unless you and the establishment agree to a change. It’s known as “theft of service” and can actually be a felony in many places when the dollar amount is high enough.
[/QUOTE]

So you’re saying that if I order steak, and they serve me Kal-Kan dogfood straight out of a can, and dump it over my head to boot- I still have to pay for what I ordered no matter what I was served??? :dubious: Your cite onlu mentions if I refused to pay for the “property or services” - if they do not give the the correct property or the correct services, how is that a violation of this code?

"appropriates property or services of another with the purpose to deprive him or her thereof," If I don’t eat the food, what property have I deprived them of?

This cite:

Food quality
If the problem is the quality of the food rather than the service and it is so poor as to be a breach of contract, again you are entitled *to reduce the bill or refuse to pay. * However, if you are going to do this you need to tell the waiter at the time the food is served or if you first taste it. The restaurant is entitled to have the opportunity of putting good the problem. …They must make clear, or show as prominently as the food prices, any minimum charge or service charge. If these charges aren’t there and on your menu and you were not otherwise told, you can refuse to pay. They are not part of your contract. If they are displayed you must pay then *unless they are unreasonable for the standard of the restaurant. * "
If the restaurant fails with any of these obligations if runs the risk of a prosecution by the Trading Standards Departments

23

[QUOTE=Duggy Fizzle]
I think some people are missing a point. If the menu says, “a 15% gratuity will be applied to parties of six or more”, then you will owe that money. If it says “a 15% gratuity will be applied to parties of six or more if you find your service acceptable” then you could refuse to pay it. I think some people are confusing what is expected of the staff, and the actual terms of the contract they just entered into.

Of course its reasonable to expect decent service, but if you agree to the terms of the “contract”, then you legally have to pay. You may have a civil case if the service is bad, but you could be charged criminally with theft if you don’t pay it. If you really feel the service was that bad, then pay the bill (with the gratuity added), and take them to small claims and tell the judge. I know it doesn’t sound like its worth the effort, but that’s the way it is.
[/QUOTE]

Cite? If two people contract to do something, and one person doesn’t complete their half, the other person, at least in some circumstances, is certainly free from the obligation to perform their half. I’m no expert, but that’s pretty obvious if you think about it. If I contract to buy someone’s car in three months, and they don’t deliver the car, I’m certainly not obligated to pay and then sort it out later in court.

24

[QUOTE=Gfactor]

This means you can send the food back as soon as you discover it isn’t what you ordered (or what was advertised). You shouldn’t be required to pay for that food. .
[/QUOTE]

So then, as I said- if the food is inedible, or not what ordered, you don’t have to pay for it (assuming you don’t eat it)?

I think if the services were so bad as to constitute a breach on contract on their end, you’d have the same right to refuse to pay the service charge?

25

I mostly agree with DSYoung and Gfactor (as I almost always do), and disagree with a couple of the usual suspects who often post misinformation to
legal threads (ditto).

But I’m not sure that is clear that this is a pure sale of goods contract covered by Article II of the UCC. (Generally, Article II only applies to the sale of goods, not services.) At best, it’s a contract under which the restaurant is supplying a blend of goods and services.

I don’t have time to verify this right now, but I believe that the resolution of the issue depends on what part of the deal predominates. For example, a dentist who installs a filling is not covered by Article II. A merchant who bags your goods and delivers them to your house is. Don’t know where a restaurant falls, but a high end place is arguably providing more services than goods. And if the 15% tip is viewed as a deal between the diner and the server (as opposed to the restaurant), it’s clear that Article II does not apply.

But I agree that the obligatory 15% gratuity is part of the contract under the circumstances described. Whether a performance faiulure by the restaurant (or, perhaps more to the point, the server) is a breach of the contact that is material enough (in other words, sufficiently significant) to excuse the diner from paying the gratuity is a different, fact-dependant question.

26

[QUOTE=DrDeth]
Cite? We really have to pay for inedible food, served improperly? :dubious:
[/QUOTE]

Inedible food? No. If you send it back because it is inedible. But don’t eat it, THEN tell the server “this was inedible!” pointing to the tiny crust left on your plate, and expect to get it, and the service, free.

27

[QUOTE=DrDeth]
So you’re saying that if I order steak, and they serve me Kal-Kan dogfood straight out of a can, and dump it over my head to boot- I still have to pay for what I ordered no matter what I was served??? :dubious: Your cite onlu mentions if I refused to pay for the “property or services” - if they do not give the the correct property or the correct services, how is that a violation of this code?
[/QUOTE]
Can we leave the absurd hypotheticals out of a GQ thread? I answered your question correctly, and now you want to change the question you asked. As for your amended question, no I can’t imagine any court would require you to pay, unless you had ordered dogfood.

Aside from the fact that that’s a UK site, so it’s not a valid reflection of the various statutes that apply to you (unless you are vacationing there), it states that you have to complain up front, and let the restaurant attempt to fix the problem at their discretion. In practice, all restaurants that I’ve ever dealt with are pretty damned amenable to correcting any problems, especially if they are valid problems and not just some Joe Asshole trying to get out of paying.

28

I’m confused. It’s been said several times now that if your food is terrible, and your service is terrible, you should IMMEDIATELY bring that to the attention of the nearest waiter/manager. Most --if not all-- restaurants will immediately either void the inedible food from your bill or make you a new dish, or both.

If you eat the whole thing and THEN complain, that’s not good. But the same question keeps being asked over and over, and this response is being generally ignored. So my question is:

If your food and service were so bad, why are you not bringing this to the attention of the management, rather than waiting until you are given the bill to complain?

29

To those that are trying to create a debate, through nonsense hypotheticals and other tactics:

There’s no debate that I see here, at least not about the two factual questions asked bythe OP. We’ve had at least 3 lawyers comment already, and I believe we all agree on these main points.

Question 1: Is a mandatory gratuity that is disclosed to the diner ahead of time a binding, contractual obligation?

Yes. While a state law banning such a result may possibly exist somewhere, no one’s identified such a law.
Question 2: If the service is terrible, to a degree that the restaurant/server have materially failed to perform their obligations under the contract, may the diner legally refuse to pay the gratuity?

Yes, in general. The antecedent breach of the contract by the server/restaurant, if not corrected, may excuse the diner from paying the service charge. So the diner complains before eating the food, and the service deficiences are significant, and the restaurant fails to correct the problem, the diner may legally refuse to pay the full service charge.

However, various state theft of services laws might apply and, while you probably would prevail on such a charge if the court believes your story about the bad service, that doesn’t make you immune from arrest and the associated hassle.

Whether a particular type of server inadequacy is sufficiently material to constitute a breach of the contract is a question of fact that’s unanswerable in this thread and forum (assuming that we ignore the nonsense hypotheticals that would never come up in real life.) That issue is probably better suited for IMHO.

30

[QUOTE=DMC]
I answered your question correctly, and now you want to change the question you asked. .
[/QUOTE]

My original question was "Cite? We really have to pay for inedible food, served improperly? " You said “Certainly”. Gfactor sez “This means you can send the food back as soon as you discover it isn’t what you ordered (or what was advertised). You shouldn’t be required to pay for that food.” Do you now want to change your answer of “Certainly” to “No”? Or do you still maintain that we have to pay for inedible food? It is true that I used a hypothetical- but all I did was *list an example * of inedible food, not change my premise. Ok, sure- it was an extreme example, but it’s the point was- “does inedible food have to be paid for?”

Gfactor- could Implied Warranty apply?

(3) The term “consumer” means a buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).
http://www.ftc.gov/bcp/conline/pubs/buspubs/warranty.htm#understanding
Implied Warranties
Implied warranties are unspoken, unwritten promises, created by state law, that go from you, as a seller or merchant, to your customers. Implied warranties are based upon the common law principle of *“fair value for money spent,” * There are two types of implied warranties that occur in consumer product transactions. They are the implied warranty of merchantability and the implied warranty of fitness for a particular purpose.

The implied warranty of merchantability is a *merchant’s basic promise that the goods sold will do what they are supposed to do and that there is nothing significantly wrong with them. In other words, it is an implied promise that the goods are fit to be sold. The law says that merchants make this promise automatically every time they sell a product they are in business to sell. * "

There is also the implied warranty of fitness of food:
http://www.netlawlibraries.com/jurinst/ji_009.html
"JURY INSTRUCTION 9.56
IMPLIED WARRANTY OF FITNESS OF FOOD
When food is purchased, there is an implied warranty that it is reasonably fit for human consumption.

[Food is not reasonably fit for human consumption when it contains a foreign substance, which is likely to cause injury to the consumer.]

[Food is reasonably fit for human consumption although it may contain a bone or other substance which is natural to that type of food and might reasonably be anticipated by the consumer. Only those substances which are not natural to the type of food concerned may be classed as foreign substances. It is for you to decide from the evidence whether there was a foreign substance in the food involved in this case at the time it was [sold to] [and] [consumed by] the plaintiff.]

This warranty is known as the implied warranty of fitness of food.  | TOP |

http://www.mrsc.org/mc/courts/supreme/023wn2d/023wn2d0890.htm

"[1] FOOD - SALES - THEORY OF ACTION - NEGLIGENCE OR IMPLIED WARRANTY. In an action by purchasers of sausage for damages sustained in the consumption thereof, held that the complaint was broad enough to base liability upon negligence of the manufacturer and breach of implied warranty of wholesomeness of food sold for human consumption on the part of both the manufacturer and the retailer. "

Does that law- “the implied warranty of fitness of food” trump a state statute that you must pay for the food?

31

[QUOTE=Random]
But I’m not sure that is clear that this is a pure sale of goods contract covered by Article II of the UCC. (Generally, Article II only applies to the sale of goods, not services.)
[/QUOTE]

I worried about this too. But consider what the consequences are. If the UCC does not apply, common law probably does. There’s probably a lot of variation between jurisdictions in the common law perfect tender rule, but in this case, I think its application is customary. If I order something and it isn’t prepared to my specifications, I get to complain and have it fixed. If it isn’t, I’m not liable for it. There is no written agreement, and much of the agreement is implied by conduct and practice.

You might say: “How much is the deep fried butter?” but you’d never say: "I offer to purchase the Cecilburger Deluxe (“food”) at the advertised price and specifications, subject to the following terms and conditions:

Seller warrants:

  1. No spittle or other unadvertised ingredients. The food delivered will not contain any substance not described in the product description visible to consumers from the consumer side of the counter at seller’s store. The food preparation will comply with all legal requirements, as will the food delivered.

Conditions precedent to buyer’s performance:

  1. Time is of the essence. Buyer’s performance of this contract is conditioned on seller’s timely performance. The parties understand that buyer is on his lunch hour, the point of which is that he eat lunch within one hour. Therefore, seller must deliver the meal within a time that meets industry standards and is commercially reasonable. Seller must provide reasonable assurances of timeliness if buyer asks for it. Willful ignorance of buyer’s request is bad faith.

  2. Perfect tender. Buyer has ordered the food the way he wants it. Buyer’s performance is conditioned on seller’s delivery of the food as ordered. Seller has a right to cure defects, but this right is subject to paragraph 2.

This is part of the script, and as such, it is part if the deal, or am I missing something?

::Reaches to the holster that holds White & Summers; finds it empty:: :frowning:

32

[QUOTE=DrDeth]
My original question was "Cite? We really have to pay for inedible food, served improperly? " You said “Certainly”. Gfactor sez “This means you can send the food back as soon as you discover it isn’t what you ordered (or what was advertised). You shouldn’t be required to pay for that food.” Do you now want to change your answer of “Certainly” to “No”? Or do you still maintain that we have to pay for inedible food? It is true that I used a hypothetical- but all I did was *list an example * of inedible food, not change my premise. Ok, sure- it was an extreme example, but it’s the point was- “does inedible food have to be paid for?”
[/QUOTE]
Your original request for a cite was in response to my comment that unless you and the establishment had resolved the dispute by changing the ticket, that yes, you had to pay for the food. This started with your hypothetical where the “duck was nasty” and the “salad had anchovies”, etc. While you might not like anchovies on your salad, and while I can’t imagine a restaurant not making it right, it’s not what I would consider “inedible”. You’ll notice that I did say that you could work out something between you and the restaurant. If you don’t do so, then yes, I maintain that you are responsible for the food. I also noted that I couldn’t imagine a court finding you guilty if it was indeed as horrible as you stated in absurd hypothetical. I’m simply citing statutes, not stating whether you would get convicted under those statutes, nor whether they would be overridden by other statutes. If you have a cite that says you could legally not pay even if the restaurant doesn’t agree, I’ll happily read it.

In the real world, I know of no restaurant that won’t attempt to make something right, if it was truly wrong in the first place, whether through fixing the problem, comping the item (or more), or letting you off the hook without it costing you a penny. Even fast food restaurants do this. On ther other hand, I do know of many people who use similar arguments to attempt to not pay or pay less, but without merit. I also know many people who claim that if it wasn’t for the mandatory 18% on parties, they would have tipped more, when in fact, many of these same people either don’t tip at all, or tip below 10% when I am with them in smaller parties.

While I’ll happily sympathize with anyone who is truly the victim of abhorrent service and poor food, yet still can’t get a satisfactory resolution from the management. I just am not aware of a single instance in which that’s the case, so am finding it hard to sympathize.

33

[QUOTE=DrDeth]
Does that law- “the implied warranty of fitness of food” trump a state statute that you must pay for the food?
[/QUOTE]

Couple things:

  1. These are products liability (tort) warranties. If your food hurts you, as a general rule, you won’t be expected to pay for it. And that’s what these are about–food that is unfit for human consumption. That doesn’t mean it came with bacon when you ordered it without. It means it had sharp things in it, or maggots. There are cases that get closer to the line. My brother once found what he thought was a worm in a pop bottle. My dad (a lawyer) sent a demand letter, and he got $500.

Similar warranties exist under the UCC (merchantability and fitness for a particular purpose), but as **Random ** has pointed out, the UCC only applies to the sale of goods, and there is a question about how prepared food would be classified.

None of these warranties will get you very far with food you simply didn’t like though.

34

[QUOTE=DMC]
In the real world, I know of no restaurant that won’t attempt to make something right, if it was truly wrong in the first place, whether through fixing the problem, comping the item (or more), or letting you off the hook without it costing you a penny. Even fast food restaurants do this.
While I’ll happily sympathize with anyone who is truly the victim of abhorrent service and poor food, yet still can’t get a satisfactory resolution from the management. I just am not aware of a single instance in which that’s the case, so am finding it hard to sympathize.
[/QUOTE]

As to your first point here, we are in agreement. Most restaurants will try to “make it good”. I know of one case where I sent a letter to the mgt of Stuart Andersons, and got no response at all. (The food was not inedible, just substandard, and the restroom was filthy beyond beleif, which is scary at a restaurant). However, in every other case where I have made a reasonable complaint, I have been “made good”- often better than I had cause to expect. In fact, in the Tipping threads the OP alludes to, I am always suggeststing that dudes make their complaint known- not just stiff. Stiffing is rude, if not illegal.

As to poor service, a group of fellow employees ate the a Spagetti Factory which had the “mandatory service fee for groups”. Half of us were served timely, the rest after an unexplained gap of nearly 15 minutes. Complaints got no where. In fact, the gap may not have been the servers fault, but there was no explanation at all. Odd.

But as I said- reasonable complaints work 95% of the time. I have had my entire meal comped (for very poor service), free dessert, free drinks, a coupon for my next meal “on the house” and so forth. In nearly all of these cases, the MGT offer was fair or more than fair.

Only in the case of Dennys, where we we surpised by a roach (towards the end of the meal, it ran off the dessert plate the pie was on), and they just waved us off when we went up to pay (and wouldn’t look us in th eeye), could I think maybe I was owed more, and that’s mainly 'cause I despise roaches. I still eat at Denny’s- just not that one. :eek:

Note that I make no legal opinions here. I am just questioning others. Nor do I know who is a lawyer (other than a couple) and who is not, and whether or not they are admitted before the Bar in the correct juristiction (and I am not sure which is the juristiction as it seems like the OP isn’t asking for legal advice so much as a hypothetical) or whether or not this area is their speciality (I know a Judge very well, but he gives very little legal opinions, even “curbstone” as he specializes in Workers Comp, not Criminal or Tort law).

Now, various lawyers (and I am not sure who is and isn’t- I am not)- what is the final consensus? It seems like Random has done an excellent job on tips, but is there 100% consensus?
How about meals? Meal that is not “edible” (and you don’t eat)- legal responsibility to pay or not?

35

[QUOTE=Gfactor]
Couple things:

  1. These are products liability (tort) warranties. If your food hurts you, as a general rule, you won’t be expected to pay for it. And that’s what these are about–food that is unfit for human consumption. That doesn’t mean it came with bacon when you ordered it without. It means it had sharp things in it, or maggots. There are cases that get closer to the line. My brother once found what he thought was a worm in a pop bottle. My dad (a lawyer) sent a demand letter, and he got $500.
    .
    [/QUOTE]

How about you ordered the ceasar salad without anchovies, the salad did come with anchovies, and you are allergic to anchovies? I mean- it’s unfit for you, but hardly for the great mass of humanity. I mean, you have to make “NO ANCHOVIES” very clear, sure, but once you do?

36

[QUOTE=DrDeth]
How about you ordered the ceasar salad without anchovies, the salad did come with anchovies, and you are allergic to anchovies? I mean- it’s unfit for you, but hardly for the great mass of humanity. I mean, you have to make “NO ANCHOVIES” very clear, sure, but once you do?
[/QUOTE]

Presumably you haven’t got what you ordered, just as if you ordered the steak and and they gave you the chicken. So the restaurant has not performed its side of the bargain. (And I think it’s immaterial whether you are allergic to anchovies, you don’t like anchovies, or you normally like anchovies but just chose not to have them on this occasion).

It would be different if you could easily separate the anchovies. So if you ordered salad without dressing, and it came with dressing, but wasn’t mixed with the salad (e.g., it was in a separate container, and you were expected to add it to the salad yourself), then the restaurant would have performed its side of the bargain, because you could just put the dressing to one side, and eat the salad without it.

37

[QUOTE=Excalibre]
Cite? If two people contract to do something, and one person doesn’t complete their half, the other person, at least in some circumstances, is certainly free from the obligation to perform their half. I’m no expert, but that’s pretty obvious if you think about it. If I contract to buy someone’s car in three months, and they don’t deliver the car, I’m certainly not obligated to pay and then sort it out later in court.
[/QUOTE]

What makes you think the restaurant didn’t fulfill their half of the deal? They delivered food, you ate it. Contract completed. My point was, the contract didn’t say anything about the gratuity being added for satisfactory service, it was being added because there are six or more people. Period.

Using your example: Of course you wouldn’t be obligated to pay if he didn’t deliver the car. However, if he delivered a car that didn’t run, then you would have to pay, because he fullfilled his end of the bargain. Is it what you expected or wanted? Probably not. But this is an expensive example of something a person would buy without a somewhat detailed written contract. If someone delivered a non-working car to you, you could put the money into escrow and then not release it until he fixes the problem. That way if it goes to court, it shows that you are at least willing to pay.

38

[QUOTE=Gfactor]
I worried about this too. But consider what the consequences are. If the UCC does not apply, common law probably does.

This is part of the script, and as such, it is part if the deal, or am I missing something?
[/quote]

Yup, I agree with this. The does-the-UCC-apply issue is academic, barring some very unusual state law. Either way, we’re going to get to the same result – the one that you’ve described and I summarized in my second post.

[QUOTE=Gfactor]
::Reaches to the holster that holds White & Summers; finds it empty:: :frowning:
[/QUOTE]

Ahh, White and Summers. I knew it well. These days, I’m more of a Hawkland guy, though. (Or Brady, for Articles III and IV)

39

[QUOTE=DrDeth]
Now, various lawyers (and I am not sure who is and isn’t- I am not)- what is the final consensus? It seems like Random has done an excellent job on tips, but is there 100% consensus?
How about meals? Meal that is not “edible” (and you don’t eat)- legal responsibility to pay or not?
[/QUOTE]

  1. I believe that GFactor and DSYoung are also lawyers. (Sorry about the truncation, DS, but I don’t want those PhD students mad at me)

  2. Same analysis applies to meals. If the meal is truly, subjectively inedible in some material fashion, the restaurant has breached its contract and you are not obligated to pay for it. (Again, barring any individual state’s weird laws on the subject, and ignoring the practical issue of what a cop might do if called by the restaurant.)

40

[QUOTE=Duggy Fizzle]
What makes you think the restaurant didn’t fulfill their half of the deal? They delivered food, you ate it. Contract completed. My point was, the contract didn’t say anything about the gratuity being added for satisfactory service, it was being added because there are six or more people. Period.

Using your example: Of course you wouldn’t be obligated to pay if he didn’t deliver the car. However, if he delivered a car that didn’t run, then you would have to pay, because he fullfilled his end of the bargain. Is it what you expected or wanted? Probably not. But this is an expensive example of something a person would buy without a somewhat detailed written contract. If someone delivered a non-working car to you, you could put the money into escrow and then not release it until he fixes the problem. That way if it goes to court, it shows that you are at least willing to pay.
[/QUOTE]

I disagree with pretty much all of this.

Even if there’s no express term of the contract where the restaurant promises to serve food that’s edible, uncontaminated and safe, that term is an implied part of the contract. Granted, if the patron eats it, that’s some evidence that the food was acceptable, but not necessarily conclusive. If you eat 95% of the pie, and only realize that there was a roach baked in as your fork lifts the last bite, you still have a contract claim (or defense).

Next, service that’s at least minimally competent is similarly an implied term. Objectively competent, that is. “Satisfactory” is more of a subjective issue, and each diner’s subjective satisfaction is not an implied term, IMO.

Finally, I disagree with your car contract conclusion. We’d need to know more about the circumstances, but more likely than not, the delivery of a non-working car would be a breach. The parties don’t necessarily need to recite “the car shall be good, running condition” in order for there to be a breach. I repeat: we’d need to know more about the circumstances in order to come to any firm conclusions on this – I’m not saying that it would always be a breach. I am saying that you’re wrong when you categorically assert that the car buyer “would have to pay” even if the car didn’t run.