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

Factual Questions
41

[QUOTE=Random]
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.
[/QUOTE]

Are you kidding? Let’s try to keep this a real world scenario. If you find a roach as you are finishing a pie, there isn’t a restaurant in the world that won’t comp your meal - and then some.

On your next comment, I know that satisfaction is an implied term, but the menu isn’t asking you to to pay the gratuity on a large party, its telling you that you will be required to pay it no matter the manner in which the food reaches your table. Again, in the real world any manager will take care of things if service sucks. In this country, tipping is a well established custom and is not required. However, if a certain restaurant (not that I’ve heard of) has a sign stating that “all meals will have a gratuity added”, then that custom doesn’t apply anymore - it is legally enforcible. You aren’t being forced to enter the “contract”. If the menu says a chicken dinner cost $10, don’t you agree that you are required to pay $10?

Finally, a non-working car doesn’t necessarily mean a breach-of-contract. I’ve known plenty of people who’ve bought non-working cars to fix them up. That’s why I mentioned it’d be pretty unusual to buy a car without some specific details in the purchase agreement. Besides, its not the seller’s fault if a buyer doesn’t thouroughly inspect a car prior to purchase. I just used the car example because it represents something where you have certain expectations, but they fall short. Did you want a Chevy and they delivered a Chevy? Then pay up. Did you want a Chevy and they delivered a Ford? Then they haven’t fulfilled the deal. "oh, you didn’t say you wanted it to run. Caveat Emptor.

42

[QUOTE=Duggy Fizzle]

If the menu says a chicken dinner cost $10, don’t you agree that you are required to pay $10?
[/QUOTE]

Not if it arrives cold, or an hour late. And not if the chicken delivered varies substantially from the chicken that I ordered.

That’s why **Random ** said

It really depends on the circumstances. The UCC and other laws govern the sale of vehicles. Warranties are made unless disclaimed; representations are made by salespeople; understandings are reached about the purpose for which the vehicle is being purchased; sometimes special disclosures are required. In short, we don’t have enough information from your example to make any judgments.

43

[QUOTE=Random]

  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)
    [/QUOTE]
    Truncate away to your heart’s content. I never use the silly title in actual fact, and only used it as a screen name on AOL when it also acted as an email address for my work.
    AS I have iterated before, regarding the main question in the thread, if you don’t like a policy of a restaurant, don’t eat there.

As a similar example, there was a restaurant out in the Avenues of San Francisco, very good, fish restaurant. Went there with a bunch of friends to eat one evening. Found out just as we were about to order that they didn’t accept credit cards. Had to sneak out to get cash from an ATM. Never went back there.

44

You’re either misunderstanding or deliberately misstating what I wrote.

[QUOTE=Duggy Fizzle]
If you find a roach as you are finishing a pie, there isn’t a restaurant in the world that won’t comp your meal - and then some.
[/quote]

Irrelevant. The point is, you were wrong when you said, without acknowledging any exceptions, that the diner must always pay the restaurant if he eats the food (because the restaurant has supposedly satified all of its contractual obligations by simply delivering a plate with food on it.)

[QUOTE=Duggy Fizzle]
On your next comment, I know that satisfaction is an implied term,…
[/quote]

a) I didn’t say this.

b) In fact, I said exactly the opposite – that satisfaction was not an implied term.

c) So, if you think you “know” this, you’re wrong.

[QUOTE=Duggy Fizzle]
…but the menu isn’t asking you to to pay the gratuity on a large party, its telling you that you will be required to pay it no matter the manner in which the food reaches your table. Again, in the real world any manager will take care of things if service sucks.
[/quote]

a) No. As both I and others have said, there’s a point where the service is so bad, that you don’t have to pay, because the server/restaurant has a violated an implied duty to be minimally competent. So you don’t have to pay "no matter [how] the food reached your table. You were wrong.

b) It doesn’t matter if a restaurant will supposedly always take care of situations when “service sucks”. That just avoids the question. If it never comes up, and therefore the diner never has to pay when service is bad, what was your point in claiming that “you will be required to pay… no matter [how] the food reaches your table”?

c) If you were right about satisfactory service being an implied term, how do you reconcile that belief with “you will be required to pay… no matter [how] the food reaches your table”?

[QUOTE=Duggy Fizzle]
In this country, tipping is a well established custom and is not required.
[/quote]

Yes.

[QUOTE=Duggy Fizzle]
However, if a certain restaurant (not that I’ve heard of) has a sign stating that “all meals will have a gratuity added”, then that custom doesn’t apply anymore - it is legally enforcible. You aren’t being forced to enter the “contract”.
[/quote]

Yes. That would, indeed, be a legally enforcable contract if the diner is (or should be) aware of the sign and orders a meal. Assuming that the “gratuity” amount is also listed on the sign, that is.

[QUOTE=Duggy Fizzle]
If the menu says a chicken dinner cost $10, don’t you agree that you are required to pay $10?
[/quote]

Always? No. For reasons that I have already made very, very clear.

[QUOTE=Duggy Fizzle]
Finally, a non-working car doesn’t necessarily mean a breach-of-contract.
[/quote]

Yes. As DSYoung has already pointed out, I said this. Indeed, I said this twice. I guess you missed it. Twice.

But you didn’t say this. You said “if he delivered a car that didn’t run, then you would have to pay, because he fullfilled his end of the bargain.” You didn’t say “sometimes”, or “under some circumstances”. You included no qualifications at all.

In fact, as I said, and as DSYoung agreed, the truth is that there are many, many circumstances where delivering a non-working car would be a breach of contract.

Therefore, you were (again) wrong.

[QUOTE=Duggy Fizzle]
Caveat Emptor.
[/QUOTE]

Not necessarily the law these days. In fact, as an absolute concept, it almost never is the law.

45

Correction. I cited DS when I meant to refer to the last post by GFactor.

Apologies.

46

[QUOTE=Random]
Not necessarily the law these days. In fact, as an absolute concept, it almost never is the law.
[/QUOTE]

I have always wondered why, in legal threads in GQ, so many people who lack any particular training in the law are so willing to make statements about it and present them as the truth, based on absolutely nothing except guesswork.

47

[QUOTE=Excalibre]
I have always wondered why, in legal threads in GQ, so many people who lack any particular training in the law are so willing to make statements about it and present them as the truth, based on absolutely nothing except guesswork.
[/QUOTE]

Indeed.

The persistent ones amaze me the most. There can be 3 lawyers in the thread, with cites where appropriate, and some people still argue nonsense.

It’s a shame, because it dilutes the good information, and unknowing readers might rely on the nonsense.

48

[QUOTE=Excalibre]
I have always wondered why, in legal threads in GQ, so many people who lack any particular training in the law are so willing to make statements about it and present them as the truth, based on absolutely nothing except guesswork.
[/QUOTE]

You’d be surprised, IRL, how many lawyers do that as well. :slight_smile:

Random, one of the reasons that I admire you is you persist in attempting to correct the record and provide helpful information even in the face of repeated, persistent, unrepentant ignorance. Me, I don’t have the patience.

49

[QUOTE=Campion]
You’d be surprised, IRL, how many lawyers do that as well. :slight_smile:
[/QUOTE]

Oh my, yes.

50

[QUOTE=Random]
The persistent ones amaze me the most. There can be 3 lawyers in the thread, with cites where appropriate, and some people still argue nonsense.
[/QUOTE]

Actually, there’s a lot to be said for this. It’s possible that even with a sustaining cite, a layperson’s statement could nudge the same lawyer’s memory of some conflicting citation. As it is we have lawyers in this thread from Illinoi, Ohio, and the fair state of Michigan, all with different written laws and different court precedents. The issue of common law was also brought up, and barring an actual statute or specific ruling to serve as precedent, “common law” often needs interpretation, no? (Remember always that a jury is composed of laypersons and not legal scholars, so in many cases they may decide something contrary to law.)

51

[QUOTE=Balthisar]
Actually, there’s a lot to be said for this. It’s possible that even with a sustaining cite, a layperson’s statement could nudge the same lawyer’s memory of some conflicting citation. As it is we have lawyers in this thread from Illinoi, Ohio, and the fair state of Michigan, all with different written laws and different court precedents. The issue of common law was also brought up, and barring an actual statute or specific ruling to serve as precedent, “common law” often needs interpretation, no? (Remember always that a jury is composed of laypersons and not legal scholars, so in many cases they may decide something contrary to law.)
[/QUOTE]

Right. And there are several other issues. Many times- such as this thread- the lawyer posters have not ID’ed themselves as such. Sure, I know that some of them are, but most of us can’t really be expected to look at every posters screenname and think “Hey that guy is a real lawyer, I shouldn’t disagree with him.”

Next- we only know (at best) who has claimed to be a IRL lawyer. Other than perhaps Gfactor and Bricker who are both SDSAB and perhaps are vetted to a certain amount, we only know what dudes claim. Sure, they post pretty good cites and opinions at times, but so could a sharp law student, paralegal or lawclerk. The SDMB certainly isn’t going to get into the business of vetting who is and who is not a IRL lawyer. I am not saying that anyone who has claimed to be a lawyer isn’t one, but still- do we really want a “rule” based upon what a poster claims his occupation is?
Then as was said- where is that lawyer admitted to the Bar? Il, Oh & Mi are fine states, but differ quite a bit from CA- for example. Of course, some law is the same across all 50 states, sure.

Then we get into the issue of- does that Lawyer really practice in that field. I brought up my friend- who is not only a member of the Bar in CA, but a Judge. However, his specialty is Worker’s Comp, which has pretty different case law and practice. He has made it very clear that he doesn’t consider himself able to practice Criminal law anymore. Those “sharp law students, paralegals and law clerks” even though not admitted to the Bar- may well know more than a full-fledged attorney-at-law who has almost only practiced in one field for his career.

Next- when two lawyers disagree, what happens then? Us non-lawyers have to agree to both sides? :confused:

Now, I admit, that when a dude comes here and asks for a real Legal opinion, the non-lawyers shouldn’t give one- but really he shouldn’t be asking in the first place. No IRL lawyer is going to give IRL legal advise here, not without scads of caveats, anyway.

Thus, we are left with legal hypothetical. However, as was said her by the real lawyers- there’s no case law here. Thus, even the experts have to guess- educated guesses, sure.

But let’s face the facts- let’s say that notice about tips is on the menu. And, you claim you have not rcvd adequate service and don’t want to pay it. Assuming you make a polite dispute to Mgt- Does anyone here seriously claim that 95 restaurants out of a 100 won’t give in- even reluctantly? Then that 5%- how many will really call the police if you refuse to pay it? Now, I know police officers very well- if they were called out on this, they’d try very very hard to talk both sides down, and they’d be *very * reluctant to make an arrest. Some might even require the owner to make a citizens arrest. (In CA, it seems the police must actually witness a misdemeanor to make an arrest on that charge). Then, let’s say the PO does make the arrest- how many DA’s will really bring criminal charges on such a minor matter? So, that’s why it’s going to be hard to answer the OP’s request- as DSYoungEsq wisely said "Case law. On a gratuity. Get real " . Does any of our experts here think such a “crime” would even get as far as a formal arrest, let alone charges and a conviction? :confused:

Now, in Civil Court- the MGT sues the patron for the 15%, or the patron sues for a refund- then that’s different again, sure. I wouldn;t be shocked if either of these got into Small Claims- very petty matters get there sometimes.
(is DMC a lawyer? :confused: ) I can’t find my Program and you can’t tell the players without one. :stuck_out_tongue:

52

For what it is worth, I am an attorney at law, admitted to the bar in the state of California, and have been since 1986. I don’t practice now, and haven’t for some time, having moved to Ohio and changed occupations.

Not that it matters on simple, basic contract law. :dubious:

53

[QUOTE=DSYoungEsq]
For what it is worth, I am an attorney at law, admitted to the bar in the state of California, and have been since 1986. I don’t practice now, and haven’t for some time, having moved to Ohio and changed occupations.

Not that it matters on simple, basic contract law. :dubious:
[/QUOTE]

I am not in any way doubting you. And your username does make one think that you are a lawyer. :smiley: Not to mention you many well thought out posts.

However, do you not agree that on “simple, basic contract law” a sharp law student, paralegal or law clerk may be capable as a Bar admitted lawyer who is either out of practice, out of state or our of his field?

54

[QUOTE=Gfactor]
Some jurisdictions do regulate autogratuity notices.

*It is illegal to discriminate against a person by adding a tip based upon the individual customer. *

http://www.miamidade.gov/csd/Visitor_tips.asp
[/QUOTE]
Please tell me that this is just poorly worded, and that it is not an anti-discrimination ordinance.

55

Here is the complete tipping ordinance:

http://library4.municode.com/mcc/DocView/10620/1/192/195/198?

56

I had heard that it was thought in some areas of this nation that certain “races” would stiff or even walk without paying, and that certain “coffee-shop” type restaurants would require that that ethnicity pay a certain tip or even pay up front.

57

Really? Can you maybe cite me to a thread where that has happened? :slight_smile:

(note: this is a very rare example of a smilie use by me. In fact, it may be unique. Collect and trade with your friends!)

Gosh!

Someone has less patience than I do when dealing with idiotic law posts? Is this actually possible?

58

[QUOTE=DrDeth]

Next- we only know (at best) who has claimed to be a IRL lawyer. Other than perhaps Gfactor and Bricker who are both SDSAB and perhaps are vetted to a certain amount, we only know what dudes claim. Sure, they post pretty good cites and opinions at times, but so could a sharp law student, paralegal or lawclerk. The SDMB certainly isn’t going to get into the business of vetting who is and who is not a IRL lawyer. I am not saying that anyone who has claimed to be a lawyer isn’t one, but still- do we really want a “rule” based upon what a poster claims his occupation is?
[/quote]

This is the only part of DrDeth’s post that I care to respond to.

If I’m not a lawyer, I must be pretty amazing, considering the following:

  1. I’ve been able to fool all the other board lawyers about my status, in hundreds of legal posts over the last 6 years. (not counting AOL).

  2. I’ve been able to fool the over 100 board members who I’ve met in person, including at least two who are lawyers and one who is an experienced paralegal.

  3. I somehow scammed one board administrator who once asked for for legal advice, and a second admin who my law firm has done business with, and who has met me at my law office.

  4. My public user profile contained, until a couple months ago, my office e-mail address, which contains the domain name of my law firm, and that address is still the one that board staff can see. Dozens of board members and several staff members have e-mailed me using that address. (and, yes, before anyone asks, the large number of idiots that proliferate on this board had something to do with my removal of the public e-mail link.)

59

[QUOTE=DrDeth]

But let’s face the facts- let’s say that notice about tips is on the menu. And, you claim you have not rcvd adequate service and don’t want to pay it. Assuming you make a polite dispute to Mgt- Does anyone here seriously claim that 95 restaurants out of a 100 won’t give in- even reluctantly? Then that 5%- how many will really call the police if you refuse to pay it? Now, I know police officers very well- if they were called out on this, they’d try very very hard to talk both sides down, and they’d be *very * reluctant to make an arrest. Some might even require the owner to make a citizens arrest. (In CA, it seems the police must actually witness a misdemeanor to make an arrest on that charge). Then, let’s say the PO does make the arrest- how many DA’s will really bring criminal charges on such a minor matter? So, that’s why it’s going to be hard to answer the OP’s request- as DSYoungEsq wisely said "Case law. On a gratuity. Get real " . Does any of our experts here think such a “crime” would even get as far as a formal arrest, let alone charges and a conviction? :confused:

Now, in Civil Court- the MGT sues the patron for the 15%, or the patron sues for a refund- then that’s different again, sure. I wouldn;t be shocked if either of these got into Small Claims- very petty matters get there sometimes.
(
[/QUOTE]

Exactly.

It seems as though I had too much difficulty in trying to express myself, but DrDeth sums up well what I was trying to say. My apologies.

Any restaurant that seriously failed servicing a customer would bend whatever rules they had to make things right. However, I guess what I was saying is - if they really wanted to be pricks about it, they could be. And even if they were pricks, it would never make it to a jury or bench trial (i.e. a criminal matter), so arguing about it is pretty much moot.

60

On reflection, one thing I said isn’t true. When I made that profile change a couple months ago, I didn’t keep my office address in the profile (the part of the listing seen by staff). I changed it to a personal e-mail address.

But it uses my real, very unusual last name, which would allow anyone with even half a brain to verify my identity.