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I'm having an online discussion with someone who claims that there is no contract violated when someone steals something from a store or eats at a restaurant without paying. The person claims that there are no "contract law" cases in a Western country where one has been sued for breach of contract for shoplifting or not paying for food in the restaurant. Questions:

  1. How would that be looked at under US "contract law"?
  2. If no such cases exist, then is there no contractual obligation violated as a result of shoplifting or restaurant dashing?
  3. If such cases exist, then what are some cases?
  4. Is there an implicit contract underlying any retail store transaction?

[Clarification]

My assumption is that there is an implied contract here:

  1. Offer is that the door is open and you may browse inside my store; if you want to take some of the merchandise, you have to pay for it.
  2. Acceptance Entering into the property assumes you agree with these implied terms.

Would failure to pay be a breach of the contract?

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    How is a contract (allegedly or arguably) formed by a shoplifter? The thief does not make an offer to the shopkeeper, nor does the thief accept the shopkeeper's offer to sell the goods for a certain price.
    – phoog
    Feb 27, 2022 at 21:56
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    Perhaps the question you should ask your discussion partner is, "why should it be violating a contract law for it to be a crime?" If that's not your discussion partner's point, then there is no issue.
    – justhalf
    Feb 28, 2022 at 21:54
  • How could it? Contract law applies to negotiations and agreements between or among two or more parties. Shoplifting is a form of theft. What comparison might you make? Mar 1, 2022 at 0:15
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    Why do you (or your friend) think that contract law would be at all relevant to those situations? Contract law is not the 'highest law' to which all other laws defer. Is your friend perhaps falling for the "sovereign citizen" nonsense .... ?
    – brhans
    Mar 1, 2022 at 1:02
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    You can't have your cake and eat it too. If, somehow, there was a contract, then it was clearly violated. And it would only have been through a contract that the store would have given consent for the item to be taken away, so if there was no contract then the shoplifter has simply committed theft. Either way the shoplifter loses. Mar 1, 2022 at 18:18

3 Answers 3

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I'm confident that there has been no successful breach of contract lawsuit on that basis: that is not the right legal basis. Actions against a shoplifter would either be under tort law or, much more likely, criminal law. Put simply, theft is a crime, encoded in the laws of all nations, and the government will shoulder the burden of punishing a shoplifter. Since the goal of criminal law is to guarantee a well-ordered society (not to restore the victim of the crime), a victim of theft may have to pursue their own legal case against the criminal, if they want to be restored for their loss (let us say that the criminal also ate the evidence).

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  • Thanks for the answer. I guess I'm having a hard time why the person I'm discussing it with is specifically thinking that it must be part of contract law else it's not a contract. But there is a transaction that occurred, so is there no implicit contract underlying the transaction?
    – Kiril
    Feb 27, 2022 at 16:48
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    @Kiril, did a transaction happen or did the perpetrator inflict damage upon the victim?
    – o.m.
    Feb 27, 2022 at 18:50
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    @Kiril more plainly: a transaction happens when a customer gives money in exchange for goods. When a thief takes goods, there's only unilateral action, not a transaction.
    – phoog
    Feb 27, 2022 at 21:59
  • @Kiril you are probably talking with a libertarian. They have some... strange notions about contracts and contract law.
    – jo1storm
    Mar 1, 2022 at 14:49
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    Your friend basically says that I’m allowed to murder you unless I signed a contract that I wouldn’t.
    – gnasher729
    Mar 2, 2022 at 9:05
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There is, at least normally, no contract requiring that one person not steal from another. Nor is a theft a "transaction" in the sense that term is used in contract law. Rather theft is both a crime and a tort. The government may bring a criminal charge against a thief, leading on conviction to a fine, or imprisonment or both, or perhaps to probation in place of imprisonment. The victim may bring a civil case against the thief (in common-law countries the usual term for this tort is "conversion") seekign restoration of the stolen property or is monetary value, plus possibly additional damages for the loss of the use of the property.

In the restaurant case there is an implied contract. When one orders and accepts goods (or services) there is an implied contrast of sale if there is no explicit contract, and failure to pay is a breech of that contract. But in that sort of case it is more usual to sue for conversion as in the shoplifting case, because then there is no need to prove the elements of a contract. A suit could proceed on both theories at once. In most if not all jurisdictions, this is also a crime, generally some variant of theft, and may be prosecuted as such.

In some cases a criminal conviction will include as part of the sentence an order to pay restitution to the victim. That may well obviate any reason for bringing a civil suit. As the victim will then not need to pay court costs or a lawyer, in jurisdictions where such sentences are usual the victim may choose to wait for the criminal case before filing a civil suit. This will vary by jurisdiction.

The exact definition of theft, both as a crime and as a tort, will also vary by jurisdiction. But I don't know of anywhere that shoplifting or "dine-and-dash" eating are not both crimes and torts.

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    In addition, if the criminal case is proved, then the civil case is usually much simpler (there is no need to go over the evidence again). Mar 1, 2022 at 14:29
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How would that be looked at under US "contract law"?

Contract law normally isn't implicated by shoplifting. There is no agreement of the parties in those cases.

The private lawsuit causes of action belonging to a category of civil lawsuits called "torts" arising from shoplifting would typically be called "conversion" (for money damages at common law), "replevin" or "claim and delivery" (to seek return of the specific items stolen), and "civil theft" (where available, normally providing both remedies and additional statutory remedies like attorney fees not otherwise available, not present in all states) (replevin is really, strictly speaking, a "property rights lawsuit and not a tort lawsuit).

As a practical matter, however, the criminal justice system is the easier, cheaper, and predominant remedy as a theft conviction ordinarily includes a restitution award to the victim, and the case is investigated and prosecuted at state expense rather than the merchant's expense. Usually, shopkeepers form a close relationship with local law enforcement agencies to make shoplifting and dine and dash prosecutions go smoothly.

If no such cases exist, then is there no contractual obligation violated as a result of shoplifting or restaurant dashing?

Shoplifting doesn't violate a contractual obligation unless it happens after checkout but before payment.

Restaurant dashing would ordinarily be a breach of contract in addition to conversion, civil theft, and a crime, since by ordering food you agree to pay for it.

Note also, however, that if you order food at a restaurant and intended to pay and in good faith believed you could pay, but then realize that you don't have enough money (e.g. your only credit card was denied and you had no cash because the bank reduced your credit line without telling you) and admit that you can't pay, that rather than dashing, you do have a breach of contract claim for the merchant.

Historically, this situation is most often resolved with either an IOU from the diner (perhaps with a driver's license or something else of value offered as collateral for the IOU debt), or with payment in kind through washing dishes, and almost never results in actual litigation.

If such cases exist, then what are some cases?

I've never seen such a case at the appellate court level where cases are reported.

The criminal justice remedy is predominant.

Also, small civil claims are usually appealed to general jurisdiction trial courts whose decisions aren't reported publicly.

Almost nobody is willing to spend the money to use the civil litigation process in cases that are typically under $100 when there is no cost effective way in the "American rule" system where the loser doesn't usually pay the winner's attorney fees in a breach of contract case involving an oral contract, to litigate such cases.

Is there an implicit contract underlying any retail store transaction?

Yes. A contract for the sale of goods is governed by Article 2 of the Uniform Commercial Code in the United States. But, in a shoplifting case, there is no retail store transaction.

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