32

If a restaurant normally accepts credit cards, and a customer eats a meal there, then tries to pay with his valid credit card, and the cashier says the credit card system is down and they can only accept cash today, and the customer has no cash, and no easy way to get cash, can the customer legally leave without ever paying? Does the restaurant have a simple and legal way to enforce the debt?

Assume the restaurant displays signs that they accept credit cards, and gives no prior notice to the contrary. Also assume the restaurant's bank has just severed its relationship with the restaurant, so credit card payments in any form are not viable.

  • 42
    Restaurants (and pretty much any service that depends on payment after services rendered) have paper credit card receipts that they can fill out and manually process later in the event their card systems go down. I've never encountered a restaurant that didn't have this procedure, and would be incredibly surprised to find one that legitimately said they could only accept cash right now. I just experienced this at Applebee's a couple weeks ago. – animuson Aug 15 at 14:43
  • 11
    @markb But you pay for your food before the food is ever given at a place like that. There's no damage to the business if you just walk away, nor is there any debt. All that happens is they lose a customer that didn't have cash. – animuson Aug 15 at 15:56
  • 4
    @animuson True, though many credit cards now don't have raised numbers for imprinting (had this happen to me at a restaurant; the waiter brought my card back after realizing it wouldn't work), and customers may not have another card on them. The restaurant also might not have backup equipment (a lot of businesses are just using an iPad running Square these days) or nobody there knows how to find or use it. – Zach Lipton Aug 16 at 3:20
  • 7
    @Zach I haven't seen anyone use a device like that in ages. They just write down the numbers onto the paper in the appropriate spots. They don't need a card imprint to process a card later. In my experience only the managers/supervisors are trained with this form, but someone there should have knowledge of what to do. It's really not hard. – animuson Aug 16 at 3:27
  • 4
    My favorite is when a cabbie says that their credit machine is broken after you asked at the beginning of the ride that they accept credit and suddenly it's working when you tell them you have no cash. – zero298 Aug 17 at 2:31
36

There is no intention to commit theft, so there is no criminal act on the part of the customer.

Even if there was a criminal act, the ability of the restaurant to detain the cusomer (citizen's arrest) is very limited in most jurisdictions.

The restaurant can ask the customer for his name and address, but there is no legal obligation on the customer to provide this. Refusal to do so, however, might be evidence of intention to avoid paying and at that point the restaurant might call the police.

The customer can leave, and the restaurant can pursue the debt through the civil courts if they have means to do so - they may have CCTV of the customer and his car registration which can be traced.

Petrol stations, where people often fill up and then realise they can't pay, usually have established "promise to pay" procedures where they take the customer's details and the customer has 48 hours to pay before police or civil enforcement action is taken.

  • 15
    @Snake It's exactly twice as hard to do it that way =D – Cort Ammon - Reinstate Monica Aug 16 at 16:20
  • 16
    @Snake: This also means queuing up twice, and taking approximately twice the time for you and the cashier. In countries where crime rates are low, the occasional theft is probably cheaper than the extra wages for more cashiers. In Germany, 99% of all gas stations let you pay afterwards. – Guntram Blohm supports Monica Aug 16 at 16:24
  • 1
    @Snake Of course, in the not so old days, prepay wasn't a thing even at self service stations. So drive offs was just a risk gas stations took. – pboss3010 Aug 16 at 17:40
  • 4
    @Snake This is never what happens! If I go in there is a long line of slow talking slow moving individuals who want to buy chips, soda, or etc. The cashier is even slower, answering a phone call at the same time, and other difficulties. Then someone pulls out a personal check, and everything grinds to a halt as they need to write down their drivers license # and etc and otherwise muck about. There's no way I want to wait for this kind of non-sense. – cybernard Aug 16 at 19:45
  • 5
    Adding to Guntram Blohm comment: Not just Germany. Ditto Netherlands, Belgium and probably all surrounding countries. I never even saw prepay your petrol until I visited the USA though I have travelled though quite a few European countries. – Hennes Aug 17 at 10:02
10

Time to negotiate. I had this happen with a $46 tab. I told the manager that I had $21, and that the server should get a tip before the bill was paid. I also offered to take their address and send a check.

The manager accepted the $21 and agreed that the server would get $8 of it first. Possibly less risk for them than relying on me to send a check.

From a legal standpoint, they changed the payment terms mid-stream, after I sat down and ordered (contracted) and demanded payment in a specie which I did not expect. In retrospect, I thought that I should not have offered all the cash I had, and it left me in a different town, without an ATM card, and a full day ahead of me.

However in the scenario presented, the restaurant advertised that they would accept credit cards as payment, and only after the goods were delivered decided to change the terms. In the US Federal Reserve Notes and coins constitute legal tender, however there is freedom to contract for other forms of exchange. In this example, the restaurant held out that they would accept a certain form of payment, and without advanced notification changed their exchange. This may create not only inconvenience or short term inability to pay, but it may also affect cost structures for the consumer.

To be clear, if handled correctly by the consumer, this is a contract issue, and in the US would be a civil matter. The restaurant could be suit against you for failure to pay. It would not be a criminal matter because you did not have criminal intent when you ordered you meal to evade payment, and will gladly pay in the form they advertised at the time you ordered. So let them sue you. Your integrity would have you settling the contract soon, and they would have no reason to file suit.

Sometimes in business transactions the threat of criminal consequences is used to encourage civil compliance.

One could offer future payment with a credit card, or some other method of paying, but if the establishment wants to call the police, I would hang around to make your statement to the police, and explain to them that there is no intent to not pay (therefore not criminal, but rather civil). They will most likely make notes and not detain you further.

  • 13
    The musing about restrictions on payment methods being illegal is incorrect. Businesses are required to accept legal tender for settlement of existing debts. They are absolutely permitted to restrict methods of payment as part of the negotiation of the transaction - if you do not like the required payment method, you are free to not enter into the contract. Many businesses nowadays do not accept cash at all, and this is perfectly compliant with the law. – David Aug 15 at 15:49
  • 4
    @David, the problem comes in, as the OP stated, when one finds out about a change in terms after the contract (order and service). – mongo Aug 15 at 16:49
  • 4
    In Germany businesses are obliged by law to accept cash as payment: Euro bank notes are "the only unrestricted legal tender". That principle should hold in most jurisdictions because it is the very basis of our trust in the value of a colored piece of paper: That we can buy stuff with it everywhere. – Peter - Reinstate Monica Aug 16 at 10:13
  • 1
    @HAEM, please help me understand your comment. The OP stated that they were served and only afterwards when they went to pay, they were told that credit cards were not accepted that day. To me the contract was contemplated at the time of the order. The restaurant changed the terms of the contract at he time of payment. How is that different from changing the price of the meal at the checkout? Or requiring someone to pay in gold coin at the time of checkout? – mongo Aug 16 at 12:20
  • 1
    @PeterA.Schneider At least in the U.S., legal tender is only required to be accepted as payment of a debt. If no debt yet exists, such as in the purchase of something that has not yet changed ownership, a business is free to demand whatever form of payment it wants to. Regardless, it isn't relevant to whether a business will accept other forms of payment such as credit cards. – Douglas Aug 16 at 18:23
3

The actions the restaurant can take, likely depend on HOW you leave the place

Suppose you eat and find out that they cannot accept the card. If you then run out of the building, they will likely be in their right to make a claim on you.

However, what I have done in similar situations was starting a conversation as follows:

This is unfortunate, what do you propose?

If they have no reason to believe you created the situation on purpose, then they will usually either point you to a cash point (or indicate an alternate payment method) or simply let it slide.

If you create a verbal agreement to pay afterwards, and don't do it, you will again be in a situation where they probably have the right to make a claim on you. Yet, if you came to an agreement that you don't need to pay, you should not worry about getting in trouble later.

3

Well there's the principle of causation, which applies both for criminal and civil cases more or less universally (in every civilized country, anyway).

If, for example, you break their window, you caused the damage, and therefore you are liable for it. If you cannot pay because you didn't bring any means of payment, well that's bad because again you caused it. If you cannot pay because their payment system does not work, you are first and foremost not actionable, but that doesn't automatically mean you never have to pay.

Eating at a restaurant is basically a non-written, non-verbal contract of sorts which is settled by your actions (much like using a public transport makes you subject to the terms of transportation, even if you shout out loudly "I do not accept these" when entering the train -- your action concludes the contract, and obligates you to e.g. have a ticket, or else).

This contract includes, in some more or less specified or unspecified way, that you get food and that you will pay for food. You apparently did get food (otherwise why would you bother paying at all?). So, the expectation (and the orderly procedure) would be that you pay using a different means, or if you have no other means, at a later time. Your obligation to pay didn't just magically vanish.

So, you would likely just negotiate with the waiter that you pay at some later time (what else can you say, and what else can they accept!). And yeah, they'll have to take your word that you won't run off and never come back. If you plan to ever eat at that place again in the future, then you'd probably not want to burn them, too.

I've been in such situations before, and it was no "real" problem. Just paid the other day, all on wod of honor. The restaurant doesn't want to burn a customer either, after all.

I've had the situation with large bills, too. Sometimes, people don't like to accept them because all large bills are false and only drug dealers use them (or some other WTF?). Either way, if you present an orderly piece of (non-false) money in a reasonable trade which someone refuses to take for no good reason, it's not your problem, and you shouldn't make it your problem (sure enough there's limits to what is within reason, buying something worth 0.50 with a 100 bill probably isn't).
A shop could of course refuse the deal if they are not happy with an official piece of currency that they ought to accept, only just in a restaurant after you've eaten may be a tidbit late for that decision. But... not your fault!

3

He can always pursue you in civil law

In a pay-at-the-end restaurant, a debt is created when they deliver the food. They have the full range of civil law available to pursue you for that debt, including court, garnishments, etc.

The debt is persistent, and does not clear when you walk out of the restaurant. It clears when the Statute of Limitations is reached, typically 6 years.

It only becomes criminal with intent to not pay

If you are putting any effort into creating this situation. E.g. Frequenting a restaurant where you heard the machine was down, that is fraud, and that is criminal. That means police, jail, etc.

A pattern of behavior that convinces a jury you are doing it on purpose would suffice.

An example of that might be when a mob of people show up, run up a big bill, one of them surreptitiously breaks the card machine, then they all go to pay. Mysteriously, none of them have any cash, and resist other ways of paying by card... and then the same thing happens at another restaurant the next Saturday, and another, etc. etc.

Obviously, actually paying nullifies any intent to not pay. However this only works if you pay timely. If you are charged criminally and then settle up with each restaurant, it's too late.

Faulty premise: Credit cards aren't interactive (necessarily)

You are presuming that credit card transactions can only be run interactively. That is not true, and I'm not sure where you got that, other than that they're usually run interactively.

Your duty is to present your card, signature, and good word... And not obstruct whatever technology they might use, such as swipe, PIN, chip-insert or NFC. How they turn that into a transaction is between them and their acquirer. (The acquirer is the bank they deal with to gain access to the credit card system.)

The acquirer charges them different rates for different authentication methods: chip vs swipe vs keyed-in numbers.

Classically, a store would dust off their old "Chi-CHUNK" imprinter. The components were card number, expiry, your name, the fact that they were imprinted, and your signature. The text you are signing says "I agree to be responsible for this charge" etc. No interactivity; no "decline". However, acquirers no longer want stacks of slips mailed to them, so they would expect the retailer to key in the numbers on a PCI-DSS compliant terminal when internet service is restored.

I have also seen retailers use the old chi-chunk slips, but simply hand write the numbers in. The relevant part there is you are still signing the "I agree to pay". That is proof that the retailer is acting correctly when entering a manual charge.

Other businesses cook up their own similar forms where the card data is hand written and the user signs.

This handwritten slip and signature process is not dependent on any particular acquirer. They can sign up with any acquirer and run your transactions later. PayPal comes to mind.

1

Failure to accept payment is not the same as failure to provide payment.

It is typically accepted in cases like these that the restaurant will attempt to make available alternative forms of payment. This generally means jotting down card details (much as their payment system would have done anyway), but it does not mean forcing customers to utilise a payment method that was not otherwise required at the point of sale, and it certainly doesn't justify penalising them for not being able to satisfy said new requirement.

Though I'm not a lawyer, and I probably never will be.

-1

I was in a petrol station where I witnessed something like this, and I believe that the shop-owner can legally require you to return at a later date to make the payment which is owed.

It seemed me like the shop-owner was saying that the customer would have to return to make the payment or that it would be seen as theft and that he would take legal action to obtain the money owed otherwise.

  • No, that is plain wrong - not returning to pay a debt is not "theft". – sleske Dec 10 at 9:22

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.