The specials board looks tempting. So does the vague fish du jour “at market price”. There are times when a diner doesn’t know the price of a menu item without asking.
Does the diner have a right to complain at the end of the meal, when they discover the price? What’s the position at law?
We’ll start at first principles. A contract is formed when:
- someone makes an offer;
- that offer is accepted;
- there’s consideration given against that offer – here, it’s agreeing to pay; and
- there’s an intention to be bound by that accepted offer – which is a given in a transaction like this.
Menus are the same as items on the shelf at a supermarket. The law recognises that the menu (and the items on the supermarket shelf at that price) is not an offer to sell that item at that price, but an “invitation to treat”. Yes, those are the words that have been used since 1892. The written menu can be extended to include the specials read out to a diner.
That “invitation to treat” is important. Without it, a diner could sue if a particular item on the menu wasn’t available.
A customer who places an order, agrees to pay the restaurant’s price in exchange for that dish or drink. The price for any item on the menu is the price listed. If it’s not listed on the written menu or mentioned by the waitstaff, there’s still a price. It’s probably recorded in the point of sale.
The diner is not in a position to complain at the end of the meal and say it’s too expensive, or more than they thought. The diner agreed to pay the restaurant’s set price for the dish or drink. It’s the diner’s fault for not asking the price.
Of course, some blame can be placed on the restaurant, but that’s a moral and PR issue, rather than a legal problem they face.
As a diner, would you prefer feel a little judged by asking the price at the time of ordering, or later throwing a hissyfit over, what, $30?
This Small Plate is an extended analysis of the law of priceless menu items, briefly described in Richard Edwards’ article in the Daily Life section of The Australian on 12 April 2016.