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I had it happen to me a few times that my credit card was blocked or deactivated by the bank without letting me know, and I only that found out while trying to pay. To counter that I always carry some cash. Now I've been hearing about some newfangled "cashless" restaurants. Thankfully, I'm not aware of any where I live, but what would happen if I went into one of those, ate, tried to pay with card, it failed, then I offered to pay with cash?

As I understand the legality would work something like this:

I accept the the contract where I agree to pay with card in exchange for food

I attempt to fulfill the contract to the best of my ability, but am prevented from doing so by circumstances beyond my control

At this point I owe the restaurant the money, but since the original transaction failed, this is a debt, which I offer to settle with legal tender

Is that how it would work? Or are there some additional issues? Or is it one of those gray areas that'll only become concrete once it happens and actually goes to court?

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  • Having a functional credit card is not beyond your control. Not knowing whether your card works or not is your issue to solve with the bank. – Nij Dec 20 '18 at 22:09
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    @Nij Bank suddenly blocking my card without warning is not under my control, and is not within my capacity to solve, as I can't prevent the bank from blocking it. Not only that, but the bank may block it for completely legitimate reason, such as if the number was stolen from some server (also completely beyond my control) Ultimately, I can guarantee I have cash in pocket, I can't guarantee that my card will work, because that's not up to me – Maxim Dec 20 '18 at 22:24
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    @Nij I only have one credit card. – Maxim Dec 20 '18 at 23:58
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    @Nij consider this: Maxim drives to another city, buying some fuel and paying tolls with his credit card. (This is a pattern of use that has caused my cards to be blocked in the past.) Immediately after using the card, he goes to a cashless restaurant, buys and consumes some food, and then, when trying to pay for his.meal, discovers that his card has been blocked. What then? It's a perfectly reasonable question. Instead of scolding Maxim for allowing himself to get into this situation, why not just answer it? – phoog Dec 23 '18 at 3:51
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    Practically speaking, I doubt it will ever get to legal issues. The restaurant will surely anticipate this possibility and have a contingency plan that results in them being paid and nobody getting sued. My guess is that the restaurant will eventually, grudgingly accept your cash. You might have to wait for your change as a check from the corporate office. If this happens to you repeatedly, or they suspect you're doing it on purpose, they will ask you not to come back, and possibly refuse to serve you if you do. – Nate Eldredge Jan 20 '19 at 1:17
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While it is true that cash is legal tender, this can still be overridden by mutual agreement (i.e. in a contract). So the legal tender status only matters if payment methods were not agreed upon before entering into an agreement.

In other words: If a restaurant lets you eat without telling you they do not accept cash, they will have to accept cash. However, if they explicitly tell you they only accept card payments, they can insist on this later.

This applies in both the United States, in Germany, and in Canada (see e.g. It may be legal tender, but more businesses are snubbing cash).

So to address your points:

As I understand the legality would work something like this:

1) I accept the the contract where I agree to pay with card in exchange for food

Yes - however, in accepting the contract you also accept that the restaurant is "cashless" (assuming the restaurant clearly tells you so, e.g. by putting up a sign or by saying it in person).

I attempt to fulfill the contract to the best of my ability, but am prevented from doing so by circumstances beyond my control

Yes. Since you attempted to fulfill the contract, you did not commit the crime of theft (which requires intention not to pay). However, you still owe what you promised when entering into the agreement, which is to pay with a card.

At this point I owe the restaurant the money, but since the original transaction failed, this is a debt, which I offer to settle with legal tender

No. As explained above, if the agreement stipulates a specific payment method, this generally overrides the "legal tender" aspect.

In short:

  • You agreed to pay with a card, so you are required to pay with a card.
  • If you cannot pay with a card, you have not fulfilled your part of the agreement. It is is arguable that it is not your fault, but this does not change your obligation.

Now you must either negotiate a suitable alternative (cash, cheque, golden watch...), or come back to pay later with a card. Also, the business may be able to charge you additional costs, such as extra accounting work or interest because of your non-standard payment - that would depend on the details.

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    The details may also allow you to charge the restaurant for your time if you have to return later. – Tim Lymington Jan 16 '20 at 18:09
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They don't have to accept cash - they could make arrangements for you to return with a different card, for you to send a cheque through the post, for you to make a direct transfer to their account, or they could waive the cost of the meal.

For all but the last option, you have a debt with them which they could recover through court if payment wasn't forthcoming - or they could report you for theft.

Your defence would be that you had made two good faith attempts to pay, the first being frustrated by the failure of the card transaction, the second by their policy. If you have discussed alternative ways of paying them - and have made attempts to do so - a court is unlikely to conclude you had intended to steal.

But they don't have to accept cash - if none of the other options works, they could waive the cost of the meal.

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    If it's a debt, cash must be accepted, that's the definition of legal tender... – Nij Jan 15 '20 at 18:14
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    @Nij - If you (the diner) don't agree with any of the other options, that would settle the debt, but they could still waive the cost. Editing to clarify. – ItWasLikeThatWhenIGotHere Jan 16 '20 at 8:51
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That is not how it would work.

A term of our contract is that I will not accept cash. You have breached the contract by not paying when the contract required you to. Your breach of that term does not force me to waive the term that you won't pay with cash (although I can - for consideration or otherwise).

I can sue you, claiming the money owed and damages for the breach of your not paying when required. If and when I win, the judgement is a debt and that can be settled with cash.

Alternatively, I can detain you (using reasonable force) and call the police to have you arrested for theft.

As an aside, you state "am prevented from doing so by circumstances beyond my control" like this excuses you from fulfilling the terms of your contract. In general, it doesn't. You must do what you contracted to do irrespective of outside circumstances. It is possible for a contract to be frustrated, however, that requires a significant and radical change to the rights and obligations where it would be unjust to hold the parties to their word. Your bank cancelling your credit card doesn't qualify.

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    I'm still curious how that would work in real life, even if non-working card doesn't count as circumstances beyond one's control, it is still in reality beyond my control, you can detain me or call the police, but that's not going to make the card functional again. It seems like the only path is a court, but that can only force me to pay cash, which I'm already willing to do – Maxim Dec 20 '18 at 23:48
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    Doesn't theft require mens rea? Clearly, if I attempted to pay by card and was frustrated by something I could neither control nor predict, and offered an alternative form of payment, it seems pretty clear that I had no intention of eating without paying. – David Thornley Dec 21 '18 at 0:06
  • @Maxim The court may force you to pay damages in addition to the initial amount, such as court fees, the other parties time and trouble, the other party's lawyer's fee, interest, etc. The police perhaps could also charge you with theft and jail you. The practical answer is to have multiple credit cards, from different banks, so that it is unlikely that all will be blocked at once. You may also be able to ask the establishment to check the current validity of a card before making a purchase, if there is reason to doubt it. – David Siegel Dec 21 '18 at 0:10
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    @Maxim You probably could not be convicted. But you might possibly be arrested and spend considerable time and trouble dealing with the issue. – David Siegel Dec 21 '18 at 23:52
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    @DaleM Supermarket is not as problematic as a restaurant, though, if your card doesn't work you just don't take the items. But if you already ate the food and then the card doesn't work, you're at an impasse, if they allow you to pay later, it's a debt and they have to take cash, and if they sue you and win, it's a debt and they have to take cash, so why not just take it in the first place then? – Maxim Oct 16 '19 at 22:33

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