Not About Food

Unstated Specials Prices -- A Legal Analysis


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Not About Food

Unstated Specials Prices -- A Legal Analysis

nosh | | Sep 3, 2007 12:22 PM

Starting a new thread from the previous discussion about stiffing the server when restaurant management policy prohibits stating the price of the specials and the patron is surprised and upset when it turns out to be significantly above all other menu prices.

I am a criminal law attorney, so I'm not conversant in contracts, common law, or the Uniform Commercial Code. But it seems to my elementary legal analysis that when a price for a dish is specified on a menu (or stated verbally) and the customer orders it, then a contractual understanding has been reached. You offer said item for this price, and I'll order said item and pay that price.

But what about the situation where a special is offered verbally and no price is specified? The server didn't give one, and the patron didn't ask. It seems to me that no contractual understanding has been agreed upon. And while common practice would support the restaurant's right to set the price, in the absence of any prior explicit agreement I fail to see the absolute justification for this. The restaurant may argue that they set the prices, but in almost all circumstances they are specified on the menu. The restaurant will argue that the customer should ask, but I see a stronger position for the patron that all of the other prices are published. In that event, the controlling principle would be reasonableness -- and the customer definitely has a strong argument that an unstated price for a special that exceeds all other prices on the published, set menu is unreasonable.

So if I get the bill for an unspecified special price that exceeds the highest menu price by $7, easily 20%, I cross out the price on the credit card, adjust downward, add the tip, and pay the adjusted amount with underlining, written adjustments, and keeping the copies.

Too much hassle? In most circumstances, certainly. Tell the restaurant to sue me in small claims court. But these unstated special prices at the whim of the restaurant have got to be challenged and changed.

Just my opinion. I'm in California. Anyone got a UCC provision or statute to the contrary?