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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.