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Unstated Specials Prices -- A Legal Analysis

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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?

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  1. If you would go to that much trouble because an increased price obviously bothers you that much, why not just ask the server the price?

    I understand that people don't like discussing money outloud. But for Pete's sake, its a restaurant, and they don't give away food. I think that any restaurant that has specials should let the customer know the price, period. (I don't care if its verbal or with a specially printed menu or even written on the paper tablecloth). I ALWAYS ask the server the price of specials if unmentioned, even if the special contains bananas and I would never in my wildest dreams consider eaten it. Why?? Simple. I think that they should tell me the price if they are going to try and sell me something. My asking is my way of telling them that people want to know the price and it should be told. If everyone asks the server the price, sooner or later the server will get tired of having to answer the additional question and will figure out a way to be upfront about it.

    I obviously can't answer your question from a legal perspective, but from a practical perspective I think my solution is a little better way of dealing with the issue....

    3 Replies
    1. re: janetofreno

      Let me be very clear -- I think restaurants should state the cost of their specials, either in writing or when verbally describing them. But the server in the previous thread said it was her restaurant's policy not to do so.

      Sure the customer should ask, but why is it his or her responsibility? Restaurants publish the cost of all other menu items. If they charge more for specials, they often count on the reluctance or discomfort of patrons to ask, for fear of looking cheap, especially if they have a guest. Then they gouge them.

      My goal -- restaurants state the price of the specials, all the time, without asking. My point -- it is their legal obligation to do so. Otherwise the customer is only obligated to pay what is "reasonable."

      1. re: nosh

        "Otherwise the customer is only obligated to pay what is "reasonable." "
        ~~~~~~~~~~~~~
        And just who determines what is considered "reasonable"? The patron? The restaurant? How could this even be determined? Maybe the restaurant manager and patron should play Rock-Paper-Scissors to see who decides what's reasonable?

        Good lord - just ASK for the price if you're interested in one of the specials. If it's more than you think it should be, move on to another choice. It ain't that hard.

        1. re: nosh

          "If they charge more for specials, they often count on the reluctance or discomfort of patrons to ask, for fear of looking cheap, especially if they have a guest. Then they gouge them."

          So, you're saying the restaurant's withholding of the price is part of the grand scheme to gouge their patrons? Oh please. Yes, the chef and management are in kitchen wringing their hands with glee, saying "it's brilliant! The customers will be too embarrassed to ask the price, and then we've got 'em right where we want them!" What an evil master plan! I'm surprised you can even enjoy dining at restaurants, with the whole industry out to get you and all.

      2. that is just ridiculous nosh. If you want to know the price of the special, ask. It's not hard.

        1. I don't have a California case or statutory cite, but I believe UCC ยง2-305 speaks to open price terms in contracts.

          But based on my very rudimentary, and many times flawed, understanding of contract principles, I think the analysis would go something like this.

          If the diner refuses to pay the "unspecified" special price, the restaurant can sue for breach based on course of dealing -- i.e., there is an accepted custom and practice in the restaurant industry that a diner agrees implicitly to an "unspecified" price when ordering a menu special. I'm sure a restaurant owner can come up with a whole host of restaurant experts that will testify to this custom and practice.

          You can take your example to an extreme with omakase menus. Oftentimes, there isn't a stated price, and the sushi chef will simply feed you until you say "stop, I'm full." The total bill may exceed what a non-omakase diner would pay by ordering off the menu. Is this unreasonable? Or is it simply accepted as custom and practice when dining omakase?

          Or what about the old bottled water trick, er, I mean offer? Servers often offer diners bottled water BEFORE any menu is handed out, and continue to provide new bottles even without asking. Or what about at the bar? You can often order a nice scotch or tequila without ever being told the price. No contract? That'd be hard to argue in any of those cases IMO.

          While I agree with you that when no price is stated by the server for specials, and you the diner orders the special, there is a strong argument that no contract has been formed because an essential term of the contract is missing -- e.g., price. But under the UCC, custom and practice can often substitute for missing contract terms, including price as well as other things like place of performance, or time of performance, etc.

          Just my 0.02.

          3 Replies
          1. re: ipsedixit

            here in new england, it's very common for a menu to read "m.p." --meaning "market price" -- next to many seafood items, especially lobster and oysters. fish is caught and delivered daily, and the price can vary widely.

            i hardly think people refuse to order the lobster because they are afraid to ask the price.

            1. re: hotoynoodle

              That's common practice everywhere. Not only should patrons ask for the market price for that day, but also ask for the weight of said seafood. In Chinese restaurants it's common to actually bring out the said item (lobster, crab, fish), fresh from the tank, for patrons to see before cooking.

              1. re: PeterL

                apparently, to some, asking prices is either more embarrassing or more offensive than anything else on the planet.

          2. I would think the best way to "challenge" this terribly underhanded practice of unstated special prices would be to ASK. Goodness, is it really that hard?

            1. When I go to a restaurant and I order the special I expect that it will be, well, special. I know for something special I will be charged a premium, more than I am charged for other "less special" items on the menu. The other post you referenced listed foie gras as one of the ingredients and stated that no other dish on the menu had this ingredient, which helped to explain the special price that exceeded the highest menu price by $7. If you, the patron, agree to purchase the item w/o first confirming the price...you agree to pay whatever price is asked. The onus is on the individual.

              p.s. I'm glad that so many Chowhounders have common sense.

              1. There is an implied contract: if you eat it, you're paying for it. If you ask someoone to mow your lawn, but don't ask the price, you're still responsible for paying for the job. You get the benefit of the meal or the mowed lawn. It would be inequitable to stiff the person who rendered the service or provided the food. You may have a dispute over the price. For you to adjust downward, after the fact, is unfair. Prices are restaurants are not something you negotiate -- ask the price up front and if you don't like it, pick something else.

                1. IANAL, but it seems to me that if you order a special that does not have stated price, you've created a quasicontract that will likely be enforceable. While the law seems to support your contention that you'd only be on the hook for the 'fair market value' of the meal, irrespective of actual price, I don't think your practice of paying what YOU think is fair is...well, fair, either. Specials are usually special, and *ought* to command a premium price.

                  1. i don't think nosh is saying that we shouldn't be asking or using this method as a reaction to unpriced specials. it's more for the case of not having asked and now being presented with a bill that you find "unreasonable" that you still have rights when feeling swindled by a restaurant who's policy is to not make prices explicit...

                    personally i'd prefer if all specials were written and passed out with the menu with prices. ordering from recited specials is a practice in memory for the server and diner, and leads to all sorts of confusion. this way no one has to fell "embarrassed" to ask anything and no one misses the specials. i also like to know all my options before choosing and not being on the spot to decide.

                    5 Replies
                    1. re: chocabot

                      choca, I agree with you - it's great if the specials are written out *with* prices. I also much prefer it that way, especially if the restaurant has more than two special apps, entrees, and desserts - impossible to keep track of them after a half minute!

                      However, in restaurants where they are verbally given to the patrons, the patrons are then responsible for asking about prices. And if they don't, they cannot object to paying the price of that special if they didn't take any responsibility for *asking* about the price! They chose that item; in a sense, they entered into a verbal contract with that restaurant to pay for that item.

                      Why is it that some feel the patrons don't have *any* responsibility in these situations?

                      1. re: LindaWhit

                        The "verbal" argument is great on "paper," but let's say the diner in the noisy restaurant claims the waiter told her fifteen for the grilled mongoose, and the waiter swears he said fifty? As is said many times in law school when talking about contracts, oral contracts are worth the paper they're printed on. Having it in hard copy avoids all confusion as well alot of questions.

                        1. re: bulavinaka

                          I don't disagree with you at all. But we're still going back to what the restaurant's policy is - verbal specials with no price given unless asked. And I would think that if the restaurant can show that they've regularly charge $50 for the grilled mongoose, then that's the price, regardless of how noisy the restaurant is and what the diner thinks they heard.

                          1. re: LindaWhit

                            And I totally concur that every restaurant has a right to establish this verbal specials policy and any other policy that doesn't break any law of health code. But in my world, the pros completely outweigh the cons in determining which would work better, that's all. Besides, I think many of us would argue that, based on years of experience, $50 for grilled mongoose is way way too much. :}

                      2. re: chocabot

                        A favorite resto if mine in St Louis is Riddles - the menu changes daily based on what was good in the market that morning - all the descriptions and prices, right there in front of you.

                        I spoke to the owner, and Andy told me that he used to have a fixed menu with off menu specials - and he would give the servers a "cheat sheet" with the information. His customers, on seeing the servers referring to the cheat sheet would ask to see it - and then the sever would need a new one.

                        Andy being an intelligent man, switched to the present format - putting out a new menu every day - with a computer and a photocopier - not a big deal!

                      3. Nosh, as you are involved in criminal law, could you say, in the 'solution' you prescribe' whether or not the restaurant could, instead of sueing you, seek to have you arrested for theft, just as if you attempted to pay a $20 check with a $10 bill and refused to pay any more?

                        1. Applebees have a cocktail menu on the table with NO prices. It means they can put prices up I guess without having to change the menu.

                          4 Replies
                          1. re: smartie

                            As a business owner, not a lawyer, I actually agree with most of what Nosh is saying. I'm not sure I personally would cross out an amount on the credit card slip, but I applaud him for doing so. Without stating the prices the restaurant could in turn vary the specials prices on a per table basis. Maybe the server doesn't like the patrons and adds five bucks to each special, how would the patron know? It does seem like the specials are sometimes used to gouge the customer.

                            I owner a used car dealership and some of our car prices are not written on the window. Sure people should ask, but if they don't we can write the deal up with the price clearly visible. THEN the customer decides if that is fair and sign the paperwork, if not they can negotiate. If you're not told the price of a special, you're given your bill and expected to pay, not negotiate. But really, why couldn't you negotiate, you never agreed to a price?

                            Imagine if someone came in, said they'll take the 2004 Toyota Camry and I wrote it up for $50,000 and told them to sign. Since they didn't ask the price should they just shut up and pay? Should I call the police on them for not paying? Officer, they didn't ask the price but I gave them the bill, they have to pay.

                            1. re: Rick

                              If they drove off in the car (ate the food), you'd call for the police in a heartbeat.

                              1. re: jes

                                I wouldn't give them the keys before they paid. The restaurant gives you the food then expects you to pay whatever price they decide. Not the same.

                                Actually, you make an even better point. Imagine I give someone the keys to a 2004 Toyota Camry, have them sign the title (eat the food) then ask for $50,000. Still fair?

                                Sure my argument is exagerated, but sometimes when you take an extreme example you can understand the OP's original stance better.

                              2. re: Rick

                                These days the odds of varying a special's price are extremely slim. In a mom and pop place where they aren't using a computerized point of sale system it would be easy, but at most places they have a computerized system, where in order to change the price of the special a manager would have to go into the office and change the price in the computer for everyone.

                            2. My writing was not exact. I do not and have not crossed out the price on the credit card slip in protest. As an attorney, the situation as I outlined was a hypothetical, an example, a stimulant for discussion and debate.

                              Please understand my intent -- restaurants should state the price of their specials.

                              I ask you to review this thread and the "Do You Blame the Server If" where it is absolute consensus that servers should not be penalized for restaurant policy. Don't subtract from the tip. But then how does a patron object to the objectionable restaurant policy of not stating prices for specials?

                              Almost all posters want restaurants to state the prices for specials. Almost all posters want restaurants to provide written cards if there are multiple specials. Everyone understands that there may be cross-outs.

                              So what does the argument come down to? Clearly, those flaming me say that if the server doesn't state the price of the special, the customer should ask.

                              I agree. If the restaurant is so solicitous of the few who they rely on to say "We don't want the prices! We can afford this restaurant. How dare you insult me by stating the price of the special! (Though every other price is on the menu.)" then perhaps buyer be aware.

                              But I am not saying the customer shouldn't ask. I am saying he or she shouldn't need to. The restaurant shouldn't put him or her in the uncomfortable position. If the restaurant exerts its power, then it should assume the risks and costs, not the customer.

                              Nobody has come up with a persuasive reason why specials prices should not be stated. If specials are offered, the prices should be offered too. Sure, I should ask. But I shouldn't have to.

                              13 Replies
                              1. re: nosh

                                "But then how does a patron object to the objectionable restaurant policy of not stating prices for specials?"

                                By calmly informing the manager/maitre'd/owner that the undisclosed price of the special came as an unpleasant surprise and making it clear that the practice of not disclosing the prices of specials would weigh in the consideration of where the patron would choose to dine in future We all have the option of voting with our feet; non-confrontationally reminding management of that fact is a way of letting them know bad practices can be costly.

                                1. re: nosh

                                  Totally agree. The customer should never have to ask the prices. I think it's pretty rude when the wait person tells you the specials without the prices, and then you are burdened with having to ask. Give me a break, a restaurant is a business, not a secret society, just state the dam prices.

                                  1. re: slacker

                                    I guess I just don't consider it a burden when I'm trying to make decisions on how best to spend my money. I would rather that the restaurant voluntarily cough up the information but if they won't, I don't mind asking. Edited to say that after reading further on, I had not thought much about this from the point of view of being a guest. In that case, I can much more understand why it would be preferable to have the prices given rather than having to ask. I am so rarely in the position that it had not occurred to me.

                                  2. re: nosh

                                    Hi Nosh, I'm a pre-law student and although I haven't read all the way through these posts, I'll bite.

                                    If I were on the other side of this debate, I would argue that once someone has agreed to "order" a product that is offered by an establishment, they *have* actually entered into a contractual agreement, regardless of whether or not all pertinent information has been exchanged. The establishment offering the product does have a set price for all those who order it regardless of whether or not the customer asks for said price. If you choose to order it and consume it, you should be prepared to pay the price. Just as you wouldn't sign something if you didn't agree to its terms, nor should you order something if you don't agree with the terms on which it is being presented.

                                    Further, the term "reasonable" cannot apply here as it is contextually, a subjective term. While it might be reasonable to assume that a "special" would be equal to or slightly less than the most expensive dish offered on the menu, one cannot make such an assumption as there are no "reasonable" grounds upon which to base such an assumption. Have past "specials" been equal in price? Is the "special" dish even comparable to the most expensive item? How does one deem whether they are in fact comparable? The term "special" only indicates that the item being offered is not standard to the menu.

                                    Come on people, suck it up and pay your bills. :o)

                                    1. re: adrienne156

                                      "Reasonable" just means the "reasonably prudent person with all the available information." It is often subjective in a normal-human-being sense. Arguments can typically be made for either side in a legal sense. "Reasonable" is a term of art when used in legalese.

                                      If someone ordered a dish and then refused to pay more than $X for it, the restaurant could argue that the customer had been unjustly enriched to the extent that the price of the dish exceeded $X.

                                      From a practical standpoint, no restaurant is going to sue you for the amount in excess of $X, and no restaurant patron is going to spend the money to defend a suit for that amount. The discovery alone would cost everyone a small fortune, and it would probably subject all the attorneys involved to sanctions for allowing clients to bring frivolous lawsuits.

                                      1. re: jnstarla

                                        I do understand the concept of the term "reasonable," I was just arguing that it would be a difficult argument to make in this particular case. Further, I meant my post as a hypothetical, hence the "if I were on the other side of this debate."

                                        1. re: adrienne156

                                          Reasonableness isn't an easy argument to make in any case. Just wait until law school - it's totally crazy-making, I promise. I'm a 3L. :)

                                          For example, the customer could argue that they relied on the menu to determine what a "reasonable" price for an entree would be at Chez Snooty, and that since the most expensive item on the menu of Chez Snooty was $32 they did not expect a special to be priced above $32 + X (where X is a reasonable markup for a special on a menu such as that of Chez Snooty).

                                          To counter, the restaurant would argue that the reasonable price of an entree containing caviar, fois gras, and grilled emu is in fact $32 + Y (where Y is a reasonable markup considering the cost of the fancy pants ingredients contained in the special at Chez Snooty).

                                          Who's right? They are probably both legally sound arguments, and this situation is necessarily fact-bound and difficult to discuss in the hypothetical.

                                          1. re: jnstarla

                                            But from a purely contractual stand point, there is no denying that there is a price regardless of whether or not the customer is made aware of it and wouldn't it then be the customer's responsibility to make themselves aware if price is an issue?

                                            1. re: jnstarla

                                              Btw, I believe you about about reasonableness. I took the few undergrad pre-law classes at UC Davis and they were something else.

                                        2. re: adrienne156

                                          "regardless of whether or not all pertinent information has been exchanged"

                                          I suppose it will be later that you will learn the legal concept of "meeting of the minds". If there is no "meeting of of the minds" there is no contract. If I am bargaining for one thing and you are bargaining for another there can never be a contract.

                                          It is correct that not all information need be exchanged, however, all information that can be described as pertinent information must be.

                                          Oh, and "there are no "reasonable" grounds upon which to base such an assumption"

                                          Speaking of assumptions...

                                          1. re: FrankJBN

                                            I stand corrected. I love this stuff. :o)

                                            1. re: FrankJBN

                                              But, one more question - where is the line drawn then when it comes to a "meeting of the minds?" Is this when reasonableness comes in? If a customer sits down in a restaurant, orders the special, consumes it, but is unhappy when the bill comes, does the restaurant just lose that money? I'm not trying to argue - I genuinly am trying to understand and want to learn - but, while I see the illegality of adjusting the original bill or not paying a portion of it, I don't understand how the restaurant automatically gets dinged.

                                              1. re: FrankJBN

                                                After "meeting of the minds," don't neglect the next necessary component
                                                of a contract: "offer and acceptance." Without a price being mentioned,
                                                has that happened?

                                          2. I believe that if you tried to adjust your own check, it wouldn't be UCC, it would be CPC, the California Penal Code; namely a 484, Petty Theft, just like trying to shoplift something. After you didn't ask the price of the special and ordered it, it would be implied that you didn't care how much the dish cost. And almost no matter what, I wouldn't try to go back to the restaurant, they'll likely throw you out on your ear.

                                            As a waiter, I skirt this issue quite simply. "The special tonight is Szechuan impala with a butternut squash coulis, it's very delicious and goes for thirty-eight."

                                            4 Replies
                                            1. re: JK Grence the Cosmic Jester

                                              Wow...that Szechuan impala sounds like it really IS a special! Where do you work? ;o)

                                              1. re: ricepad

                                                I work at Trader Vic's, but if I feel the urge to insert a random dish name I use the Froo-Froo Menu Generator. The Szechuan impala was the most likely candidate for something we'd serve if we suddenly found ourselves with ten pounds of impala meat in the fridge. Much easier than me racking my brain trying to remember what last night's special (which, now that I think about it, was curried coconut-crusted prawns with mango coulis, pineapple fried rice, and sauteed Asian veggies)

                                                The Froo-Froo Menu Generator
                                                http://www.generatorland.com/generato...

                                              2. re: JK Grence the Cosmic Jester

                                                Is that a '68 impala? jfood didn't realize chevy was making impalas in china. jfood would suggest avoiding the paint given all the lead problems over there.

                                                same person who adjusts the check will probably call AMEX the next day and stop payment as well. jerks are found on both west and east coast.

                                                1. re: JK Grence the Cosmic Jester

                                                  Actually, I believe it would be 537(a) P.C. (defrauding an innkeeper). And, further on this topic, I really find the whole subject of "specials" as a quagmire for restaurant mischief. Some years ago, I remember going to an Italian restaurant in L.A.'s San Fernando Valley that did not have calamari fritti on the menu. It was, however, a "special" whenever you asked about it. The only difference was that it cost about fifty percent more than any other place in town charged for it. I found that infuriating!

                                                2. How is price a factor? A key element to any contract is consideration for all parties. In this case, the diner is getting the food and the restaurant is getting the money. The diner agreeing on ordering the un-priced item constitutes acceptance of the offer of that item.

                                                  7 Replies
                                                  1. re: slacker

                                                    How isn't price a factor? So you'd be fine with being charged $80 for the special at Olive Garden if you didn't ask the price?

                                                    1. re: slacker

                                                      In legal terms, "consideration" means money or terms equivalent to money. In other words, a price. An agreement to price is one of the the critical elements of a contract. Without agreement to price between the parties, you may have an implied contract or quasicontract (which have their foundations in common law matters of equity and fairness), but you cannot have a contract.

                                                      1. re: ricepad

                                                        No, consideration is something you're getting out of the deal, not necessarily money. In this instance, you're getting the plate of food. The fact that one agrees to it without knowing the price, still means it was agreed to, there's no accounting for stupidity.

                                                        1. re: slacker

                                                          Actually the accounting is:

                                                          Debit - Lesson Learned
                                                          Credit - Cash

                                                          1. re: slacker

                                                            'Consideration' cuts both ways in a contractual relationship. The money (or equivalent) is the consideration the restaurant is due. Your consideration, as the customer, is the food.

                                                            1. re: ricepad

                                                              Uh, that's what I said in the first place.

                                                              1. re: slacker

                                                                You said, "the diner is getting the food and the restaurant is getting the money," but in the OP, it isn't getting full consideration. Partial consideration to the restaurant in exchange for full consideration for the diner just ain't right. THAT is how price is a factor.

                                                      2. Avoiding some of the "begging the question detours", here is my IANAL view:
                                                        (i dont know much about the UCC or state codes ... this is more of a Law & Econ ...
                                                        "what would Learned Hand/Richard Posner do" ... type analysis)

                                                        1. if you *chose* not to ask the price and you ate the meal, you pay.
                                                        this is analogous to "you didnt ask how big the steak was and it was
                                                        half the size you thought it was so you want to pay half". you should
                                                        have asked. you were not decieved. if you are offered a "baked grue" and
                                                        you thought that was that was an ostrich like animal but it turns out to be
                                                        a fish, you should have asked, you pay [if you dont more than one bite ...
                                                        legal maxim "every dog gets one bite" :-), i suppose it would be "nice" for
                                                        the resto to work something out, but this is in the discretionary pale, not
                                                        obligation]. bars dont have the prices of all the drinks posted and people
                                                        order drinks all the time without knowing how much they might cost. if the
                                                        sommelier recommends a wine and you says "that sounds great" and dont
                                                        ask the price, that is also your problem. if you asked for a $50 wine and that
                                                        turned out to be the price for a 375ml rather than a full bottle, you cant complain
                                                        if you had a chance to refuse after seeing the bottle. now if for some crazy reason
                                                        you we not able to observe it was a 375ml before it was presented, then that might be
                                                        an interesting situation but "it would have been awkward to to refuse the bottle
                                                        at that point" isnt a defense. you have a "right" to be annoyed, but your $ obligation
                                                        to the resto is also clear. if you asked him to recommend a $50ish bottle ad he signed
                                                        you up for a $200 bottle ... i think you totally have a right to complain. i dunno how
                                                        that would be handled in practice. if i had to pay under those circumstances, you can
                                                        bet my experience would end up in the google cache.

                                                        2. now the only case i think you might have a valid complaint is if you can somehow
                                                        prove they are doing some kind of "willingness to pay" analysis and charging people
                                                        the same amount. like say "charge that 22 yr old $21 for the "seafood pasta special" ...
                                                        "charge the wife of that dood who ordered the $200 wine $28".

                                                        3. again, going back to the "misunderstanding" case above, i think those are the
                                                        tricky cases. say you've had a long, solicitous chef's tasting menu type meal and
                                                        through the course of the 4-5hr meal you speak at long length with various members
                                                        of the wait staff, wine staff, the chef comes out to chat for a bit etc ... and at the very end
                                                        somebody says "the chef would like to *offer* you a glass of dessert wine" and you
                                                        in complete good faith thought that was an offer on the house, but it turned out to be a
                                                        $20/oz pour of something "old" ... well i guess you'ld have a decent claim to challenging
                                                        "contract formation". although i could certainly see the norm being "there is a strong
                                                        presumption of any food you are offered under the restos roof is something you have
                                                        to pay for and the customer is completely responsibile for resolving any ambiguities.
                                                        simlilarly, i think the customer has to presume there is a corkage fee ... you ask the
                                                        resto to serve a bottle, i think they are allowed to charge their "std corkage" and tough
                                                        on you, if you didnt ask. on the other hand, i'd say they cannot spring a split charge
                                                        on you if it isnt disclosed.

                                                        4. of course there is the "material discrepancy" analysis if what you got wasnt what
                                                        was described. "excuse i am a vegetable professional and that was not an heirloom
                                                        tomato." i thought i read somewhere it is with some frequency restos sub fish A for
                                                        fish B, which they deem an adequate substitute". i think if you are swapped fish
                                                        and this is not disclosed, and you somehow discover this after the fact ... let's take a
                                                        fun example ... you put up a blog post with pix about you dish and Eric Ripert sends you
                                                        and email telling you "that's not the fish you think it is" ... i'd say you have a decent
                                                        claim on getting some money back [but of course in the real world, obviously blogging
                                                        about it is probably all you would do].

                                                        summary: i think there are some difficult "contract formation" cases, but the one you
                                                        propose is easy in most settings.

                                                        [BTW, did you see the thread on the "waiter, there is a (fruit) fly in my wine" hypothetical?
                                                        http://www.chowhound.com/topics/418846
                                                        http://www.concurringopinions.com/arc...]

                                                        1. Of course there is still a contractual understanding if you order, even without asking for or receiving the price.

                                                          1. Let's not quote Shakespeare at this point, but jfood would rather have a "rational Man" theory on this versus a legal analysis.

                                                            - If you order a dish without knowing the price it's your risk on whether the price is the same, less than or more than the price of a dish with similar ingredients
                                                            - If two people order the same dish at a resto then the resto MUST charge both custos the same price (let's leave out MP's per pound for this analysis but a derivative analysis would lead to a non-discriminatory conclusion)
                                                            - There is no basis for arguing that 10% or 20% or 50% is the apropriate "surcharge" over the price of the average or most expensive item on the writtne menu is acceptable. Do you run a regression analysis and the take 2-deltas around the mean. Well guess what the term "special" qualifies this as being acceptable to be outside 2-S.D.'s from the mean
                                                            - You ordered it, you ate it, you pay for it. Growing up in NJ that is SOP. Next time ask. What's the old saying "screw me once shame on you, screw me twice shame on me."
                                                            - Taking it out on the waiter is gutless, cowardly and totally classless. The same people probably enjoy laughing at the homeless. These people should be tagged on Open Table as a DNR - Do Not Reserve. Taking it out of the waiter's tip, OMG
                                                            - If you are that upset, calmly walk to the manager and explain your dilemma. He may take a few dollars off as a sign of goodwill, but please do not be a schnorer about it.

                                                            So the Rational Man approach says, grow up, pay up, suck it up and remember not to put yourself in the same situation a second time.

                                                            3 Replies
                                                            1. re: jfood

                                                              a friend of mine was a waiter at an expensive place here in boston, with a very deep and notoriously pricey winelist. group of lawyers came in (4 of them) to celebrate having just won a huge judgement. the firm made a fortune that day. caviar, champagne, foie gras, exceptional vintages of bordeaux and a few california cult cabernets were consumed. as well as some d'yquem. servers, runners, bussers, the sommelier and the assistant sommelier all ran their butts off to keep the meal and service running at 5-star caliber.

                                                              check presented -- it was almost $5000. obviously most of that came from the wine. black amex to pay the bill. with much drama, the host handed the signed receipt back to my friend and said, "we're only tipping you on the food because the wine is so ridiculously overpriced here." they tipped $75, which was only 15% on the food.

                                                              a legendary display of restaurant guest financial arrogance.

                                                              i am not trying to sidetrack into how much people should tip on wine. however, i think some people look for any excuse to screw servers out of tips. this and the thread that birthed it are prime examples of that.

                                                              1. re: hotoynoodle

                                                                Oh yes, a legendary tale. I've heard that one as well.

                                                              2. re: jfood

                                                                One of my co-workers ordered the special at lunch time at a downtown NYC restaurant without asking for the price. The special turned out ot be twice as much then the most expensive item on the menu ($75.00 for the lobster special).
                                                                Anyway, he spoke with the management who gave him a comp meal for next time.

                                                              3. One thing that it seems has been overlooked is that discussing prices is considered uncouth, especially in higher end places. Perhaps the reason prices aren't mentioned when describing specials is to honor the idea that someone at the table is the host and it would be gauche to discuss the cost in front of his/her guests.

                                                                4 Replies
                                                                1. re: mojoeater

                                                                  This is EXACTLY why servers should ALWAYS state the price of specials. If I were someone's guest, I would never order something that might turn out to be exorbitantly expensive, and thereby seem to be greedy. Nor, if I am someone's guest, would I feel comfortable asking the price of specials, even though it is something that I would like to know, for the aforementioned reason. I do think that restaurants shouldn't price specials wildly (20%) above the menu's general price points, but sometimes there is something extraordinary to offer that simply costs more. In these cases especially the price should be disclosed. But I think that it is common courtesy to the customers to not make them have to ask. Information that is volunteered can be heeded or ignored, but it is far less awkward to hear the price than to have to ask for it.

                                                                  1. re: ClevelandRandy

                                                                    There used to be menus for women that did not have any prices on them. The idea was that they should be able to order what they like without worrying about price. And the gentleman would never want price to be mentioned in front of his date. The tradition of ladies' menus is all but gone, but there are still a lot of hosts who might find mention of cost embarrassing.

                                                                    1. re: mojoeater

                                                                      I don't get it. Why would the host not be embarassed about his guests seeing the prices in the menu (unless he entertains at a private club that still has guest menus without prices), but then be embarassed about the price of specials being said aloud by the server?

                                                                      1. re: ClevelandRandy

                                                                        You just answered your own question -saying something aloud brings additional attention to it. The server has no idea what the situation of the diners is - first date, biz dinner, old friends. If it's a formal setting, voicing cost is considered tacky. If it's more casual, the host/guest/whoever can ask the prices.

                                                                2. I make a point of asking that the prices be included in any recitation of the specials before the server begins the ritual of telling me what the chef has devised for my eating pleasure. Usually, I am met with a dour look or nervous laughter. Why?

                                                                  Is there really some anecdotal evidence that the owner is in the kitchen wielding a giant, sharpened cleaver and threatening the wait staff with a booming vocal admonition of "if you mention the prices of the specials, you'll ruin me!!"?

                                                                  In a world where one can type a few words into Google and discover the deepest, darkest secrets of the neighbor across the street who only enters your mind when you wave hello while mowing the lawn or heading to work, requesting the cost of a "special" seems tantamount to murder in the eyes of the restaurant.

                                                                  Even car rental companies tell me the prices of weekend specials along with the taxes and concession fees before I even book the reservation.

                                                                  7 Replies
                                                                  1. re: Seth Chadwick

                                                                    >I make a point of asking that the prices be included in any recitation of the
                                                                    >specials before the server begins the ritual ...
                                                                    >
                                                                    this seems strangely ominous, aggressive etc.

                                                                    >Why?
                                                                    >
                                                                    i dunno how you actually carry this out, but based on your determined
                                                                    "i make it a point" phrasing, maybe you transmit a "DONT TRY AND
                                                                    SCREW ME" vibe?

                                                                    Do you ask bartenders how much a drink will be before ordering it?

                                                                    1. re: psb

                                                                      I think you are reading into something that isn't there. I don't consider a request to include the pricing when the specials are recited as ominous, although I can certainly see how it could be misconstrued as aggressive. That being said, how great it would be if we didn't have to have any of this discussion because the default would be to include the prices with the specials.

                                                                      For the record, I do ask the bartenders for the cost of drinks. Ironically, most are more than happy to offer the information.

                                                                      1. re: psb

                                                                        Or even a "I know you're trying to screw me" vibe: "requesting the cost of a "special" seems tantamount to murder in the eyes of the restaurant."

                                                                        Perhaps the server's "dour look" comes in response to your seething animosity toward them?

                                                                        1. re: nc213

                                                                          I too always ask the price of specials since the few times I've neglected to, I've been very unhappily surprised. However, the remarkable thing is how often servers don't know the exact price & seem actually surprised that I should ask. An inevitable wait then ensues while they go back to the kitchen to get the price, amazed that I won't make a decision until knowing how much the special is going to cost.

                                                                          1. re: archer

                                                                            Restaurants that jack up the price too much on specials and don't divulge are being short sited. My parents took their friends out to eat at a chinese restaurant they frequent. The manager raved about their lobster special so my parents, being hosts, accepted (and didn't ask the price which they could have but thought it would be rude in front of their guests. Plus they thought it was a special occasion so they'd splurge, figuring $50 tops since this was not a fancy place, just a regular chinese restaurant). It came to $125 for the lobster, just one chopped lobster that didn't even taste good. My parents paid and left, never went back and told all their friends (they have a lot of friends) who also don't go anymore. Over $100, this restaurant lost a lot of business.

                                                                            1. re: chowser

                                                                              I once ordered a special at a neighborhood restaurant without asking the price. It was $32, $12 more than the highest entree price on the menu (this was quite a while ago). I wrote the owner telling him that there were very few restaurants in our city that could charge $32 for an entree, and his was certainly not one of them. He never responded, but in subsequent visits over the years, I never saw specials priced so out-of-whack with the rest of the menu. I also once wrote a letter to a restaurant about $10 martinis (you can tell how long ago that was) when no one in town was charging more than $8. From that restaurant I got a reply -- a sincere thank you with a $25 gift certificate!! But I have learned to ask the prices, whatever stupid reaction this elicits from waitstaff, and it truly irks me that I have to ask. I think that a properly trained waiter should (a) know the specials, and (b) state the prices without being asked. It is common sense and common courtesy.

                                                                              1. re: chowser

                                                                                LOL, "short sited" should obviously be "short sighted." My online addiction is showing.

                                                                      2. Customer Service-wise, the resto SHOULD provide the price up front.

                                                                        Saving your wallet-wise, if the $7 or 20% or whatever extra is important to you, you should ask when you are told about the specials.

                                                                        By the way, didn't Anthony Bourdain say in Kitchen Confidential that specials are usually whatever the chef is trying to get rid of? If that is the case, shouldn't they charge less? :)

                                                                        1 Reply
                                                                        1. re: NewSushiFiend

                                                                          In my experience, this has not been the case (specials = get rid of something). In fact, they were most always something really special the chef was able to get, and yet, we always called them "additions to the menu" instead of specials. And yes, they usually cost a little bit more -- but not always -- and it was because the ingredients cost more, not because the chef was trying to screw the patrons. In fact, I'm shocked and saddened by the number of people here that actually believe this whole "specials" thing is a conspiracy to scam them into spending more money. How is life enjoyable to you, feeling like everywhere you go people are out to get you? Maybe it's just been the places I've worked, but our aim is to give you a memorable and enjoyable dining experience, not to wring every last cent out of you. Relax, people. Some places mention the price, some don't. If they don't and you want to know, just ask. You will be told, with no "crap, I've been found out!" look from anyone.

                                                                        2. Nothing to add on a legal standpoint... somehow I think a judge would side with the restaurant though. Below are my points in general:

                                                                          (1) If I order the special without asking for the price, then I would pay whatever they ask me. I don't think they will charge me more or less for some unknown reason.

                                                                          (2) All restaurants should quote the price. I should not have to feel embarassed or look like I'm cheap. It is not my job to train management on how to run the restaurant... it causes me great stress to make those corrections because I'm a people pleaser. I want them to like me. I don't want them to talk about me when I leave.

                                                                          (3) Although I don't think they will charge me higher or lower than others ordering the same special, I do believe that they are not saying the price because they think more people will order it. They are wrong. I never order the special if I have to ask for the price (because I don't want my server to think I'm cheap and a bad tipper). Too bad for both me and the restaurant.

                                                                          (4) I doubt the reason restaurants don't quote price is because guests complain about it. What would they say, "You know, I CAN afford to eat here, so why are you telling me the prices of the specials?!" Duh... all the other prices are on the menu.

                                                                          1. Boy, is there some bad law on this thread (altho I have not read it all). If i Order something that has no price tag, I have agreed to pay a "reasonable" price for it. As someone pointed out, "reasonable" is a legal term of art, ultimately to be sorted out by 12 "angry men." (ie, the jury). Obviously, you shld ask the price before ordering, but, alas, I am like many others and do not do so.

                                                                            If I do not think the price charged was within the reasonable range (which has never happened to me), I would discuss it with the manager. If that should prove fruitless, I could either pay and sue for a refund (might be fun and tie up resto mgt in ct) or pay only what I believe to be a reasonable price. in practice, the best bet would be to take the excess price off the tip, tell the server why Im doing so (and, after all server did not tell me about the price), and let the server duke it out with mgt.

                                                                            1 Reply
                                                                            1. re: tartuffe

                                                                              Boy o boy. Stuff like this makes jfood glad he decided the GMATs versus LSATs was the way to go.

                                                                              Let's compare to purchasing a used car.If you fail to ask about the motor, fail to ask about the muffler and fail to have your own mechanic look at the car with 100k miles on it and it catches fire 2 days after you buy it, do you have a claim. That case appeared on People's Court and the wonderful judge through that plaintiff out of the court.

                                                                              Not being a lawyer (that's why t he People's Court analogy), let jfood understand your analysis/position. You receive all the information that the counter party offers, you have the ability to perform additional due diligence which you decline by not asking the price before ordering from the agent of the resto mgt which is a failure on your part, you enter into a contract which the resto performs 100% of its duty to deliver as promised, you find the terms of the arrangement not to your liking after the fact (since you've already eaten the meal, you've approached the mgt and received no satisfaction, and then you decide to take it out on the agent for the mgt stating that it was their fault for not providing you with this piece of information. Then you want the agent for the counterparty to act as your agent to argue with his boss because you a) filed in your due diligence, b) failed in your negotiating skills with the mgt and c) looked for the little guy to take it out on.

                                                                              In most circles jfoods hangs with, the person doing such an act is described in terms that are not printable.

                                                                              Jfoodonfood.blogspot.com

                                                                            2. Generally, conduct by both parties which indicates that a contract exists is sufficient
                                                                              to show that a contract exists. So when you go to court and claim no contract, you
                                                                              will be sent home sadder but wiser.

                                                                              If you pay the bill and then go to court to recover, the judge will say "Where are the
                                                                              damages? You had a fine if expensive meal. Caveat emptor." And you will be sent
                                                                              home sadder but wiser.

                                                                              If you fail to pay and the restaurateur takes you to court, either you will lose because
                                                                              you breached the contract (see above) or if you argue that no contract existed, the
                                                                              legal idea of Quantum Meruit comes into play. Essentially, this means that in the
                                                                              absense of a contract, you still need to pay the fair market value of the goods. The
                                                                              chef will be there with his lobster supplier, who will say that yes, lobsters are expensive,
                                                                              and his friend the chef, who will say that lobsters cost a lot in restaurants, and you will
                                                                              be sent home sadder, wiser, and because it's small claims court they sued you for
                                                                              3x the damages so you will be poorer too.

                                                                              This is simply another one of those ways in which the consumer can be screwed
                                                                              by the business. If only there were some way, some tool, some international network
                                                                              thing where people could come together and share information on particular sleazy
                                                                              restaurants that gouge their customers this way. Maybe that would help quell the
                                                                              practice?

                                                                              1. Looking at this from a legal perspective is tough. I would think that in this case the doctrine of unclean hands would be used by the restaurant, in an attempt to show that you had no intention of paying full price, and as a result purposely did not ask the price.

                                                                                1. The doctrine of unclean hands falls on the restaurant -- legally, not health department, hopefully.

                                                                                  The restaurant posts the prices of all items on the menu. The restaurant's agent, the server, recites some specials and due to restaurant policy does not include the prices. The price of your special, without any telltale indicators such as lobster, caviar, or foie gras, is significantly above the highest-priced menu item.

                                                                                  Sure the customer could have asked. The haughty, high-class restaurant manager/policy-maker is banking on the probability that the customer won't ask. The restaurant is the party with the unclean hands.

                                                                                  Let me repeat for the Nth time: Sure I as a customer should ask. But I shouldn't have to.

                                                                                  4 Replies
                                                                                  1. re: nosh

                                                                                    Or as Miss Manners would point out, the restaurant intentionally puts you in a position where they have reason to believe you may be uncomfortable. All else aside, that's rude. Polite people, and restaurants, shouldn't do that.

                                                                                    1. re: Chuckles the Clone

                                                                                      Wow, I sure do feel badly for the servers out there.

                                                                                      I wonder if people get as upset at rude and obnoxious owners and servers as they do at unpriced specials?

                                                                                      1. re: dolores

                                                                                        If you've worked in the service industry, I'm sure you've experienced the fact that most customers vent at the wrong people majority of the time. I guess, one way or another, the message has to be sent. If enough servers receive and pass on customers' disastisfactions with a restaurant's particular policy, then it's up to the management/owner to eventually change or stand pat.

                                                                                    2. re: nosh

                                                                                      Agreed. I thought of you the other night... my birthday in fact. There was a salmon special, but she didn't give me the price, so I didn't order it. I was going to ask to see how much more than the other items it would be but didn't.

                                                                                      I think I'm going to ask next time, just to ask. :-) We get more comfortable as we do things more often, right?