Two items from today’s news raise similar questions about whether people — even lawyers — really are ready to exercise their legal rights in socially awkward situations. (And if even lawyers are not, do those rights mean anything?)
First, this from the NYT “Haggler” column, the New York Times’s consumer meta-advocate. The column, Restaurant Bill Shock? Some Readers Say ‘Au Contraire’, is a followup to an earlier one about someone going to a very fancy restaurant, ordering the daily special — pasta with truffles, price not mentioned by waiter — and being shocked by the dish’s $275 price tag.
Readers wrote in with suggestions, including this one from Franklin Synder, a law professor at Texas Wesleyan:
“You might be interested in letting your readers know that a restaurant meal is a ‘sale of goods’ under Article 2 of the Uniform Commercial Code,” he wrote. “The code provides that where the buyer and seller have agreed to a contract but have not agreed on the price, the price is not what the seller subsequently demands. It’s a reasonable price for the goods at issue. Thus a customer has no obligation to pay for anything more than the reasonable price of a pasta meal at a trendy restaurant.”
He continued: “In this circumstance, a customer should make a reasonable offer for the value of the meal, then walk out and wait to be sued for breach of contract. Be sure to leave the restaurant full contact information so they can’t claim that you’re trying to steal something.”
I confess I may know one or two people who might actually try this if sufficiently provoked, but I do not think I am part of that tiny minority.
Similarly, there is this piece of advice in today’s Miami Herald about what to do when boarding a cruise, offered by one Gabrielle D’Alemberte, who is identified a senior trial attorney at the Law Offices of Robert L. Parks, P.L., a Coral Gables-based plaintiff’s litigation firm:
For those of us in South Florida who travel outside the United States, it’s important to understand that many other countries in Europe, the Caribbean and Latin America have similar laws that make it difficult to file lawsuits in negligence-related cases. If the unthinkable occurs — a child’s drowning in a hotel pool, a crippling watercraft accident at a Caribbean resort or an outbreak of a dangerous virus on a cruise ship — the choice of forum makes a huge difference in the legal outcome.
Therefore, you have to be sure to read the fine print before signing your passenger ticket for a cruise. If you purchase your ticket through a travel agent, be sure you see the actual documents prior to departure — and send an email to the agent to document that request.
When you come to the choice of forum clause in your ticket, take out your pen and cross out a few words, such as “I agree to…” and hand the documents back to the boarding agent. While the agent has the right to deny you from boarding, most likely you will still be ushered aboard.
Likely? Likely? Let me tell you that if I were to persuade my wife to go on a cruise and then attempted to pull this stunt, I would probably be disowned. And if it resulted in our being denied boarding, I don’t even want to think of the consequences. Has Ms. D’Alemberte, or anyone in Parks firm actually tried this stunt? I’m dubious, even if she is Sandy D’Alemberte’s daughter. Admittedly it would be easier to recover from this stunt if you are sailing from a port where you live, since you can turn around and get home easily, but I think it might put a serious damper on your vacation, not to mention your relationship.
I’m not even certain whether the cruise line would be obligated to refund your money in these circumstances. I suppose it depends on at what point you are said to have accepted the language in the ticket – when they send it to you or when you hand it over to board. Is there a contracts lawyer in the house?
More generally, and more importantly, who lives like this? (And why should we have to?) No one I know does this, and I hang around lawyers all the time.
Allow me to be the first to opine that $275 might be an entirely reasonable price for a properly put-together plate of pasta and truffles: Leslie Stahl just lately broadcast a CBS special alleging that European whites are up to $3,600 a pound. And FWIW, the prix fixe at Per Se in the Time Warner Center is now $295. DK whether they warn your or not..
This is America – of course there are people that live like this and of course they will have a reality show on E! or TLC coming out in the very near future.
Moreover, I’d believe what Ms. D’Alemberte says – she did get her juris “doctorate” from the University of Denver School of Law, a school known for the outstanding hospitality law attorneys it produces.
I am not disputing her legal analysis, just its practicality.
It is rumored that a certain rather peevish law professor from your fine institution has been barred from certain establishments for crossing things out on the liability disclaimers.
These are the basic facts of Carnival Cruise Lines v Shute (that case originated in Miami BTW) where SC upheld validity of forum selection clause printed in small print on back of (non-refundable!) ticket that P didn’t even get to see until after purchase. P resided, I think, in Washington State and was forced to come back to FL to sue there. Not sure what happened subsequent litigation. Basic rationale, as I recall, was that it 1) streamlines commercial transactions, makes things cheaper for everyone because company can better control its litigation costs, blah blah blah and 2) doesn’t DENY P a forum, just makes it not the one P wants.
Oh and FWIW, adhesion contracts generally have other provisions in them that say “no cross outs and cross outs aren’t enforceable, including crossing out THIS provision, so ha!”
In a related story – If you were to take a look at the number of “Agree to Terms of Service” buttons the average internet user clicks and then actually read those ToS, I would venture to guess that one submits to a forum selection clause, mandatory choice of law provision, waives right to a jury trial, agrees to arbitration (by adhesion contract writer’s chosen arbitrator) and God knows what else on an average of 5 times a week.
Lastly, I wouldn’t pay $275 for any meal that didn’t include red meat.