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Wednesday, April 8, 2009

911 call for breach of Chinese food warranty

A A nice little exam question was on the news in the DFW area this morning.  Seems a woman ordered some fried rice from an A&D Buffalo's restaurant (left) in Fort Worth.  She ordered extra shrimp with the rice.  After picking up her order and leaving the store, she returned to complain that there were not enough shrimp in the fried rice.  When the restaurant refused to give her either more shrimp or refund her money, she called 911 to request a police officer.  The 911 tape is here.

This raises a nice little Article 2 question.  First, of course, takeout food is a good covered by Article 2 of the Uniform Commercial Code.  (Five points if you spotted that.)  Failing to provide the extra shrimp was probably a breach by the restaurant.  The question is what remedy the woman can get (besides a visit from a police officer)?  That depends, of course, on whether she rejected the food or whether she accepted it and then attempted to revoke her acceptance.

Did leaving the store without examining the rice constitute acceptance?  Obviously if she ate any of the rice it would constitute acceptance, since that would constitute an act inconsistent with the restaurant's ownership of the meal.  If she didn't, though, would taking the goods home without having inspected them constitute acceptance?  Or would she have a reasonable time after getting the meal home to inspect the rice and reject it?  If her reasonable inspection time hadn't run, she probably made an effective rejection, since she returned almost immediately after discovering the missing crustaceans.  That would mean that the restaurant was wrong not to take back the fried rice and give her a refund.

But if it was unreasonable not to inspect the goods before taking them out of the store (perhaps because there's no way for the restaurant at this point to tell whether she actually ate the shrimp and is now acting in bad faith) then she's accepted them.  We'd have to take into consideration the usual custom and practice of people who get takeout food from Chinese restaurants, and perhaps such things as whether health codes permit return of food that has left the restaurant.  In any event, if she accepted the goods she had no right to return them unless (1) she accepted the goods on the reasonable assumption that the restaurant would cure the failure (on which we might want to take evidence of prior course of dealing), or (2) the lack of extra shrimp substantially impaired the value of the whole deal to her.  (Discuss!).

If the fried rice was accepted and the diner did not have the right to revoke, specific performance probably wouldn't be available, since her remedy at law would presumably be adequate.  That remedy would amount to contract damages.  She paid $1.62 for the extra shrimp, which means her reliance and restitution damages would probably each be $1.62.  Her expectation damages might possibly be higher if the the fried rice with the extra shrimp was an unusually good bargain that she couldn't get at that price elsewhere.  Now all she needs to do is find a lawyer to bring the case.

Who says contract law is too complex and cumbersome for average people to use?

[Frank Snyder]

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