Nuggnuts (In Which I Disagree With Pam Spaulding)

The redoubtable Pam Spaulding today highlights a woman whose conduct is, she says, mind-boggling. A woman in Ft. Pierce, Florida called 911 because McDonald’s was out of McNuggets.

Well that is mind-boggling, isn’t it? I mean, calling 911 because McDonald’s is out of McNuggets is crazy. What are the police supposed to do about it? Good for the cops for running the miscreant in, says I.

At least I would, if I hadn’t read the article:

Told McDonald’s was out of Chicken McNuggets after paying for a 10-piece meal, a local woman called 911.

Three times.

“This is an emergency, If I would have known they didn’t have McNuggets, I wouldn’t have given my money, and now she wants to give me a McDouble, but I don’t want one,” Latreasa L. Goodman told police. “This is an emergency.”

The McNugget meltdown happened last week at a McDonald’s in the 600 block of North U.S. 1 and ended with Goodman, 27, getting a notice to appear in court on a misuse of 911 charge, according to a recently released police report.

Goodman told investigators she tried to get a refund for the 10-piece McNuggets, but the cashier told her all sales are final.

“I called 911 because I couldn’t get a refund, and I wanted my McNuggets,” Goodman told police.

Now, that’s a different story entirely. Rather than a woman ordering McNuggets, being told they’re out, and calling the police in anger, we have a woman who ordered McNuggets, paid for McNuggets, was told that she would get no McNuggets, and when she asked for her money back, was told that she wouldn’t get that, either.

There’s a term for that: theft by swindle. And while calling 911 three times on a three dollar theft is probably overkill (the second and third times were to check on the cops), there seems to be little question here that McDonald’s was, in fact, engaged in a criminal act, and when one is confronted with a situation where one is being actively robbed, one usually calls the police.

I’m sorry, but I can’t work up any outrage at this woman. It seems to me she was wronged twice — once by McDonald’s, and once by the cops, who could have exercised the discretion to simply educate her about 911, rather than charging her with a crime. If 911 is so overtaxed that the reporting of crimes is hurting it, that’s a problem of funding, not a problem of people calling.

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42 Responses to Nuggnuts (In Which I Disagree With Pam Spaulding)

  1. 1
    sauvage1983 says:

    I’m going to have to disagree.

    Every police department I’ve needed to call has had a non-emergency number for problems just such as this, and that would have been the appropriate choice. Calling the emergency number *is* ridiculous because while the lack of funding may be a problem, it is a reality and calling about McNuggets doesn’t change that fact.

  2. 2
    lilacsigil says:

    She should have called her local police, not 911. It may be a crime, but no-one was in danger.

  3. 3
    Jeff Fecke says:

    That’s not always the case; I’ve called the non-emergency number only to be told to hang up and call 911; more to the point, you’re assuming that this woman would have the non-emergency number handy, and would know to call it (not everyone does — after all, 911 is on every police car, while 555-1212 is not).

    If we wanted to create a universal non-emergency 311 number, that would be perfectly fine with me. But until we do, people are going to call 911 to reach the police. And if they’re calling for a legitimate purpose — as this woman was — it’s ridiculous to attack them for it.

  4. 4
    Ruchama says:

    Is there a standard non-emergency number? I know that both DC and NYC have 311, but it doesn’t look like that’s national.

    (When I was growing up, my town didn’t have 911. One of our lessons in kindergarten was making sure that we all memorized the seven-digit police phone number. We finally got 911 a few years ago, and the old number is now the non-emergency number.)

  5. 5
    PG says:

    I think the normal response in situations like this is to ask for the manager, and if the manager refuses to fix the situation, to ask for the regional manager’s number, and basically complain your way up the hierarchy. Calling the police every time an employee does something stupid is a good way to drain law enforcement resources.

  6. 6
    Bux says:

    I suspect that the caller might be more than a little difficult, but don’t think she did anything wrong. I live in Houston and have had awful service from the police. Call one number and they want you to call another. 311? Nope call your local police station. Connect you? Nope. Give you the freaking number? Nope. Finally get the neighborhood station to be told to call 311.

    She was being ROBBED. Sure, only a few bucks, but hey, is it only an emergency if your life is in danger?

    The appropriate solution would be for the 911 operators to be trained to immediately pass the call along to the appropriate place, whatever that might be.

    And what about the kids??? ::snark:: We drill it in our kids heads to call 911 if they need the police. I’d hope that 911 would provide some sort of assistance.

  7. 7
    Manju says:

    yeah, i thought i was the only one when i saw the story on cnn. but i was thinking of you people (progressives) and thinking maybe one of you is thinking like me. And you came thru, Jeff!

    i’d want cops there right away too, so they can access the situation on the spot and get me my money back.

    of course, in my case i’d be asking for o-toro and they gave me chu-toro instead. be that as it may, the chick was getting robbed, plain and simple.

  8. 8
    Silenced is Foo says:

    Obviously, being a small local case, the news media simply hasn’t pushed out enough details for us readers to get a coherent view. Was she told that she was misusing 911 resources on the first call? Does the McDonalds worker agree with her story that they didn’t offer a refund? How long was it between calls?

    With the limited information we’ve got, it could easily be either way.

    Either way, she _was_ robbed, and so was justified in contacting the police (though probably not by the emergency number, and she definitely should have attempted to resolve teh issue with management first).

  9. 9
    PG says:

    I feel like I’m betraying the guild by saying this, but: Not every situation that violates your legal rights should be met with a call to law enforcement. If someone walks down a packed sidewalk very quickly and deliberately bumps into me instead of waiting for enough space to clear for him to get by, while I blamelessly am doing my best to avoid him, I could claim to be the victim of battery. However, unless the injury is really serious — e.g., he knocks me down or into traffic — I’m not going to call a cop on him. There needs to be some sense of proportionality. And it sounds like McD’s is worried about damage to their rep: the operations manager for the Florida region is offering her a refund and gift certificate.

  10. 10
    RonF says:

    You don’t call 911. First you ask for the manager. No joy there, then you punch “0″ and ask for the local police. Sorry, someone who so full of self-importance that they call 911 three times over $5.00 of Chicken McNuggets deserves what she gets.

  11. 11
    Bux says:

    This is such a case of not knowing all the facts. It may have only been a few bucks worth of food, but that might have been her only money for food that day. There have certainly been times in my life when 3 or 5 buck was a big investment.

    Something else to consider — perhaps she had a cell phone, but no service. I know a number of people that do that. You can still dial 911 from any cell phone even though you don’t have a cell number/service plan.

    Or perhaps she’s just a crazy bitch.

    @PG

    You aren’t betraying the guild and I agree that there are tons of things in life that you just let slide. I doubt I would have done the same thing in her case … but maybe I’d have called the police as well. Some days things just build. And after McD’s refusing to allow for health comp for that employee that stopped a customer from getting beaten up I’ll admit that I’m of the “stick it to those bastards” mindset at the moment.

  12. 12
    PG says:

    Bux,

    But it’s not like McD’s was refusing to give her any food at all and had just outright stolen the $3. Theft by swindle is different from simple theft; in this case, it involved taking her money under false pretenses (that there were McNuggs available), but not a refusal to give something of value in exchange for the money. It’s not as though there aren’t other chicken items at McD’s. Maybe I’m too much of a pushover, but the conversation probably would have gone like this,

    ME: Hi, I’d like the 10 pc mcnuggets.
    CASHIER: OK, that’s $3.
    ME: Here’s a $5.
    CASHIER: That’s $2 back. Oh, uh oh, it looks like we’re out of McNuggets. Can I get you something else?
    ME: Oh, hm, I really wanted McNuggets. Can I just get a refund?
    CASHIER: Sorry, all sales are final.
    ME: Really? How does McD’s run out of nuggets? that’s like Taco Bell running out of nachos. (remembers the time she went to the Taco Bell at 125th St. at lunchtime and they were indeed out of nachos) Well, OK. I’ll have … uh, a chicken sandwich please.
    CASHIER: Here you go.
    ME: (thinks what’s the point of giant fast food corporations if they can’t get the supply chain working?) Thanks.
    Exeunt.

  13. 13
    Myca says:

    1) Yeah, this wasn’t an emergency.
    2) That said, she’s being charged with a crime? Oh, balls. That’s bullshit.
    3) These McDonald’s people are assholes. If you sell someone something and then discover that you don’t have it, give them their goddamn money back.

    —Myca

  14. 14
    Bux says:

    PG

    But they weren’t offering her anything of value, because she didn’t want it. Value, like beauty, is in the eye of the nugget lover.

    I actually do understand the reason for the “no refund” rule on the food people buy, but that requires that they actually provide the food. It seems silly, but it was her money and it was her right.

    The real moron here is the manager who let this escalate to the point of police being involved. S/he needs to be fired. Not in the least for running out of nuggets.

  15. 15
    oliemoon says:

    @Bux

    You’re assuming that the manager played a role in this. The article doesn’t mention a manager coming into the situation though. It sounds like the cashier refused a refund, tried to offer an alternative and the woman went for 911 instead. The cashier was not doing their job well, that’s for sure, but the woman should have requested to speak with a manager before calling the police and there is no indication that she did that.

  16. 16
    chingona says:

    Calling 911 is an extreme response, but McDonald’s seems clearly in the wrong here.

    Charging this woman with a crime is ridiculous. They didn’t really have to use any law enforcement resources to ignore her calls.

    And I’m another person who gets told to hang up and call 911 when I call the non-emergency number. Where I live, you call 911 for anything that isn’t administrative (requesting a report or some such).

  17. 17
    Bux says:

    @oliemoon

    A McD’s is never ever left without someone in charge. Manager, Asst Mgr, somebody. And although we don’t hear about the woman asking for a manager (1) I find it hard to believe that the customer didn’t ask to speak to someone in charge because people love to put down sales help who are mistreating them. (2) A woman standing at the counter — and I suspect refusing to step away from the register which we also don’t know — and talking most likely loudly to 911 is going to draw some attention.

    I just can’t believe that whoever was in charge didn’t know something was up and it is their job to step into these situations. And if the person who was supposed to be in charge wasn’t in the store I can promise that they will be fired. The Golden Arches have very strict rules about such things. Actually, about everything.

  18. 18
    Jeff Fecke says:

    According to the transcripts of the call, the woman said the cashier identified herself as the manager — so the woman did attempt to speak to a manager. I agree, I would have escalated up the corporate ladder (and have, many times), but that said, I don’t think she’s so clearly in the wrong as people want to paint her. Should she have called three times? Probably not. Should she be charged with a crime for it? Again, probably not. She was, after all, reporting a crime.

  19. 19
    hun says:

    1) McD was full of it: no sale happened… she did not get the goods for which she laid out her money.
    2) Calling the cops in a situation like this makes sense; if she wants to sue McD, she needs witnesses, and there are no better ones than the cops.
    3) The ‘emergency’ aspect is debatable: she wasn’t threatened. If the coppers are slow to show up at a scene like this, that’s the Police Dept.’s problem.
    4) Calling 911 three times over this is overdoing it: see #3.
    5) The cops will have trouble proving that it is ‘misuse’ of 911: is it written down somewhere what constitutes appropriate and inappropriate use of 911 services? It _was_ robbery by the sound of it…

  20. 20
    Emily says:

    I agree it’s legit to call 911 if someone steals from you, even if it’s only $3, especially when you’re right there and there’s some possibility that with the police to back you up they will just give you the money back and everything will be fine.

    Also, if I did not work in the criminal justice system there is no way I would know our non-emergency police number. 911 is what you call when you need help or want to report a crime. Do people who get into car accidents where no one is injured call the non-emergency police line to make a police report? I bet a hell of a lot of them call 911. Although, the one time I witnessed a hit and run accident, I didn’t stop right at the accident, and then I felt bad about not stopping to say I was a witness so I went home and looked up the non-emergency police number and called it and made a report. But that was a situation where it made sense to go home. When McDonald’s should so obviously just give you your money back, I don’t think it makes sense to say you should just go home without your money.

    Also, how long could it possibly take them to make more nuggets? Couldn’t she have them in like, 5 minutes or less? This makes so little sense.

  21. 21
    PG says:

    Emily,

    Also, how long could it possibly take them to make more nuggets? Couldn’t she have them in like, 5 minutes or less? This makes so little sense.

    You must have a much fancier McD’s than I’ve ever experienced. The ones I’ve been to have food mostly prepared at centralized plants, then shipped to the individual franchises to be cooked. A McNugget is a small chunk of breaded chicken; the raw chicken will be cut into the appropriate size and breaded at the plant, then packaged and shipped to the franchise, where it will sit in a refrigerator until someone orders McNuggets, at which point it will be thrown into a fryer and cooked. If they’re “out of McNuggets,” that means they’re out of the prepared chunks of breaded chicken. I seriously doubt that McD’s trains employees to be able to make the McNuggets fresh on their own, or even has the ingredients available to do so.

    That’s why I complained about the supply chain above; fast food chains can sell food at relatively low prices because of efficiencies of scale, in which literally tons of food is prepared at a single location and then shipped to the retailers in that region. If they run out of McNuggets, that’s a sign that the supply chain screwed up.

  22. 22
    Dianne says:

    Do people who get into car accidents where no one is injured call the non-emergency police line to make a police report? I bet a hell of a lot of them call 911.

    I was hit by a car while biking, but not injured. Because of the relative non-seriousness of the accident, I called 311. They told me to hang up and call 911. So, yeah, I’m virtually certain that you’re right.

  23. 23
    Dianne says:

    Things to consider in McNuggetgate:

    1. The customer was probably hungry and feeling irate. People don’t always act perfectly reasonably under those circumstances. She was correct in that she was robbed and did have the right to call the police on it, but trying to negotiate a lower key solution first would probably have been more reasonable.

    2. The cashier was probably a teenager who was told the rules he/she would have to follow (i.e. no refunds) without being given the slightest leeway or information on what to do if things go wrong. The sensible thing for him/her to do would have been to say, “I’m sorry, I’m not sure how to help you. Let me get my manager.” But a teenager, probably also stressed and hungry, probably without any clear instructions on the matter, might not necessarily always act completely rationally either.

    3. Where the heck was the manager? He or she should have been there to defuse the situation. (Then again, I’m not sure how much freedom to act in that sort of circumstance the manager has either.)

    4. What were the police thinking? Ok, they were probably thinking “we’re pissed to be called about this BS” but they’re supposed to be professionals and as such to try to work out a solution rather than charging the victim. If all else failed, they really should have tried to find someone to charge for the swindle. (But who: it clearly wasn’t the cashier’s policy, probably not the manager’s…I’d be up for trying to arrest the CEO of McDonald’s for the swindle, but only if I were bored.)

    5. My, but McDonald’s seems to be going out of their way to behave badly this week.

    In short, it seems to be a case of a lot of people behaving badly but the customer was essentially right in that she was robbed. So the person with the best case for being called the victim is the only one getting charged with a crime. We’re all saying that it was “just $3″, but what was $3 to her? Maybe whether or not she was going to eat lunch that day. But if I were the judge in this case I’d still be tempted to dismiss the defendent and police with a sound scolding apiece.

  24. 24
    PG says:

    This isn’t “robbery,” which is the seizure of property through threat or force. It’s a crime, but it’s a very specific one that was identified in the OP: theft by swindle. And even as theft by swindle goes, this is a pretty minor case, because they were trying to substitute something else of equal value for what they didn’t have in stock. I’ve never seen anyone criminally charged with theft by swindle for engaging in good faith substitution; that’s the kind of thing for which you’d sue in contract. Criminal charges for theft by swindle tend to be for things like offering a good or service, being prepaid, and then never delivering on it at all. (e.g. a wedding photographer who accepts a deposit and then never shows for the wedding)

    It’s not the “just $3″ but the “MUST HAVE MCNUGGETS” that I’m unsympathetic to. It seems really childish not to be able to cope with eating something different than your first choice (and if she was buying this for her kids, maybe a reasonable lesson in “OK, let’s try something else”). I’d have a completely different position if the cashier took her $3 and then refused to give her anything at all, or if the McD’s were staying open while having nothing except fries and salads available.

    I also don’t get why people want to blame the multinational McD’s corporation for this incident, as it seems pretty clear that rather than blaming the customer, they’re trying to clean up the situation by offering her a refund and gift card. Most McD’s are franchises owned by someone in the community, and a “no refund once money has been accepted” policy seems much more likely to have been set by the owner of the individual franchise than by the national corporation.

  25. 25
    Turtle Wexler says:

    Apparently the cashier in question was also the manager. The cashier offered a different meal, one which cost less, but would not refund the difference in price. The woman apparently only eats those two meals; in any case, it’s not incumbent upon her to agree to eat whatever the store will deign to serve her.

    Calling it an emergency was inappropriate, but if the 911 operator actually dispatched an officer for this (instead of telling her to call some specific non-emergency number) then presumably 911 was the correct number to call.

  26. 26
    Emily says:

    Oh, I just assumed that “we don’t have any more McNuggets” meant “we don’t have any more COOKED McNuggets” not that they didn’t have any at all. I’ve never heard of a McDonalds completely running out of a core item like McNuggets. One of the happy meal toys, sure, McNuggets? no.

    Also, as a picky eater, I am TOTALLY sympathetic to her not wanting whatever the person wanted to substitute for the McNuggets. If I ask for McNuggets, I want McNuggets, and if you can’t give me McNuggets you better damn well give me my money back. Some disgusting chicken sandwich that probably comes with mayonnaise and a bunch of other condiments I hate is NOT an appropriate substitute (I also don’t eat mustard, “special sauce” or thousand island dressing). If you’re not familiar with a particular item, you don’t even know what to ask them not to put on it, because you don’t know what comes on it that you don’t like to eat. McNuggets are about the most bland thing McDonalds serves. Now, if you told me no McNuggets, how about an ice cream sundae, I might agree.

  27. 27
    Siejay says:

    FTR, the item that the cashier/manager offered in lieu of McNuggets cost less, and when the customer asked for a refund of the difference in price she was told no. Two thirds of the way down the page:

    On Tuesday, Goodman said she agreed to get a McDouble in lieu of the McNuggets as long as she also got the difference in price back. Goodman said the only menu items she cares for are McNuggets and McDoubles.

    Goodman claimed a McDonald’s worker wouldn’t give her the difference in money back, so Goodman decided she wanted a full refund.

    Was calling the cops a rational response? Well, depends on where you’re standing. Anything we (the Internet) say about the customer’s financial resources is speculation, but from the audio it seems like her emotional resources are at a low point. She’s hungry, and she’s just gone through what sounds like a pretty dehumanizing retail experience. We don’t know what else is going on with her, but those two things alone are enough to activate someone’s fight-or-flight response, a condition not known for clear rational decision-making. A crime was commited agaist her; she called 911. Disproportionate from an outside perpective, but not criminal. She’s not going to win a gold star for good choices here, but she does NOT deserve to be charged with a crime. The criminal here is the fast food store that, yes, stole her money. If the county believes this is the best use of its court system, maybe they should think twice before issuing citations for “fake” calls because this charge is frivolous.

    UPDATE: She will get her McNuggets. No word on the charges.

  28. 28
    PG says:

    Siejay,

    Technically, the cashier offered her a McDouble and small fries in order to make the value equal to that of the 10 pc McNuggets. Because the customer does not like fries, only McNuggets and McDoubles, that was unacceptable.

  29. 29
    Emily says:

    It’s also not like you don’t tell them what you want BEFORE YOU PAY. The cashier rang up an order of McNuggets. She knew this customer wanted McNuggets. If she told her before she took her money that there were no McNuggets and would she like X instead then there wouldn’t have been a problem. She took money for McNuggets, and then provided neither the McNuggets nor returned the money. That’s wrong. It cannot be McDonald’s policy that it is IMPOSSIBLE to provide a refund when they do not have a product available that they have taken money for.

    I would absolutely call the cops in this situation. Because it’s so incredibly obvious that McDonald’s has to give the money back, and that not to do so would be a crime. Assuming that when the cops arrived the manager gave me my money back, I would not be inclined to press charges or go to court, etc. But you can’t let a business steal your money, especially when they tell you it’s their OFFICIAL POLICY to steal your money. I would have been super pissed. Plus, you feel like if you leave the store at that moment you lose a lot of your standing to complain. If you file a report later, there’ll be questions about who the cashier was, and trying to figure out who exactly was involved and it’ll probably go nowhere because it’s only $3.

  30. 30
    PG says:

    Emily,

    1. I imagine the cashier rang up the sale and then got word from back that they’d run out of McNuggets. I’ve certainly had waiters in restaurants take my order and then come back saying they didn’t have any of today’s special left after all. The people interacting with customers aren’t always kept constantly apprised of what’s going on in the back with food prep.

    2. There’s still the “complain your way up” option. Even after press coverage that has, at least in headlines, depicted the customer as a crazy woman, the corporate McD’s is still taking an apologetic, “here’s your refund and would you like a gift certificate with that?” posture. This indicates that had the customer reached the Florida regional manager, the matter would have been straightened out. I think it’s reasonable in a commercial transaction to exhaust the built-in mechanisms for resolving a dispute before calling the cops. A civil society with so many commercial transactions, and so relatively few cops, couldn’t function otherwise.

  31. 31
    Mandolin says:

    ” This indicates that had the customer reached the Florida regional manager, and had a huge publicity engine behind her to make sure that the word of McDonald’s generosity would have an audience, the matter would have been straightened out.”

    I mean, it might have worked out that way anyway, but I don’t think the current corporate actions are *proof* of what would have happened in a vacuum.

  32. 32
    PG says:

    According to the McD’s statement: “Regarding this isolated incident, we apologize for the inconvenience caused. In the event that we are unable to fill an order, a customer should be offered the choice of a full refund or alternative menu items. We regret that in this instance, that wasn’t the case. We want to correct our mistake. We will be sending the customer her refund, along with an Arch card for a complimentary meal on us.”

    In other words, they aren’t positing it as generosity; they’re saying that the particular franchise screwed up what is supposed to be corporate policy. One doesn’t generally mea culpa as a prelude to generosity, as an apology usually is reserved for when one is in the wrong. If it’s corporate policy to offer the choice of a full refund, why — had the customer gone up the hierarchy — would the regional manager have refused to give one and thus contradicted corporate policy?

    It also would be dumb for McD’s to claim this is corporate policy in a highly publicized statement if it isn’t really, as 1) there’s a good chance of a leak within the company to contradict any false statement; and 2) people will follow up on this and be demanding refunds in the future if they’re in this customer’s situation. If corporate McD’s doesn’t actually have a full refund policy, they would have been better off ignoring that whole aspect and just focusing on the “we love our customers so much that we’re going to give this lady a gift!” part. (And I’m sure someone with more PR training and experience than I have thought that statement through.)

  33. 33
    Sailorman says:

    I don’t see the problem with calling 911 here. As public citizens, we don’t generally expect people to distinguish between an emergency and a non-emergency; that’s the dispatcher’s job.

    So people call 911 because teens are “looking like they’re up to something;” they call 911 because their cat is up a tree; they call 911 because their house is on fire.

    911 is the default number to call when you have a problem and need the cops. It works everywhere. Some people–I’m one of them–know the NON-emergency numbers, but in all honesty I can’t see faulting ordinary folks for calling 911.

    PG, I don’t get your “other food was offered” concept. Food is a matter of preference and different dishes are not fungible even if they taste similar. There’s no moral obligation to accept substitute food: if you want a mcnugget, you want a mcnugget, not a dinner at Per Se. The only basic options are to provide the food ordered, or to give back the money.

    I also would call this theft. Theft is theft, be it by swindle or by simply taing thee bucks out of her purse. The effect of either is the same.

  34. 34
    PG says:

    PG, I don’t get your “other food was offered” concept.

    Delivery of substitute goods to fulfill the contract is a possibility in contract law. The cashier having rung up the sale, there was offer and acceptance on this contract; the problem was that the customer demanded specific performance that the seller could not provide. The seller should return the money, but it’s not outside the bounds of contract law to attempt to substitute different goods and create a new contract. Under the UCC, the contract is not breached per se if the seller delivered even non-conforming goods so long as it is by the stated or reasonable time of performance.

    I also would call this theft. Theft is theft, be it by swindle or by simply taing thee bucks out of her purse. The effect of either is the same.

    If offering a substitute for unobtainable goods were the same as just grabbing money out of someone’s purse, I don’t think the above point about contract law would be true. There’s no evidence that the cashier acted in bad faith, i.e. knowing that there was no McNuggets but taking the order anyway, knowing it couldn’t be fulfilled as requested. This was a commercial transaction gone awry, not a mugging.

  35. 35
    Myca says:

    PG, I don’t get your “other food was offered” concept. Food is a matter of preference and different dishes are not fungible even if they taste similar. There’s no moral obligation to accept substitute food: if you want a mcnugget, you want a mcnugget, not a dinner at Per Se. The only basic options are to provide the food ordered, or to give back the money.

    Yeah, I’m with Sailorman here.

    Think of this in another context, like a bookstore. You go in and pay your $5 for Rolling Stone, at which point the person behind the counter says, “Sorry, we’re out of Rolling Stone, but if you’d like Cat Fancier, we’ve got that. Oh, and it’s that or nothing. You can’t have your money back.”

    That’s just . . . no.

    —Myca

  36. 36
    Bux says:

    PG

    I’m obviously no contract lawyer, but your “the contract is not breached per se if the seller delivered even non-conforming goods so long as it is by the stated or reasonable time of performance” reasoning just doesn’t make sense to me, even if it is the law.

    So when I call up and make arrangements for my favorite young, tall, dark, handsome, hunka-hunka-burnin’ man love to, you know, “escort” me for the evening and then Don Knots shows up, apparently Prime Beef Escort Service has fulfilled their end of the contract? May be legal under the law, I don’t know, but that just ain’t right.

  37. 37
    PG says:

    Bux,

    If Don Knotts isn’t deemed by a judge/jury/binding arbitrator to be a reasonable substitute (and probably gigolo services, like many other kinds of performing arts, can require specific performance such that there is no such thing as a reasonable substitute), then no, they haven’t fulfilled their end of the contract. “The contract is not breached per se” just means that it won’t be automatically considered a breach of contract (for example, claiming that a person has STDs is usually per se defamation — you don’t get to try to explain that you think syphilis is a good thing).

    But think about if you ordered a nice hot hamburger, it took the delivery man an hour to get it to you, and you instead have a gross cold hamburger you’re not even sure that you want to eat. Would you consider it reasonable to call the cops over this breach of contract? Or do you make an angry call to the restaurant and vow never to patronize them again?

  38. 38
    Sailorman says:

    In legal terms (PG, i know you know this) what PG and I are arguing about is whether something is a fungible good which can be substituted.

    I think food is not able to be substituted in this context, because the food is being purchased for enjoyment and taste. In this context it would be viewed more like land: Land is generally viewed as unique, which is why land contracts provide for specific performance and not for substitution.

    I agree that there are circumstances where one could substitute food. If you had a contract with a school to supply 100 turkey and cheddar sandwiches, and you supplied 100 ham and swiss sandwiches instead, you might be fine: the point of the contract was “give the school something to serve to their hungry students,” not “satisfy the particular tastes of one particular individual who loves turkey.” Or if the food is being purchased merely for nutrition and with no regard for taste, then you could substitute something of equivalent nutritional value.

    None of those exceptions apply here. Food purchased for taste is the same as art purchased for taste: if you don’t want it, it is valueless to you and therefore a substitute is never acceptable.

    incidentally, the proof of that concept is somewhat inherent in the McD’s menu, in which people have the ability, based on taste, to choose from a variety of foods with similar prices and nutritional content.

  39. 39
    Bux says:

    PG:

    I’m not entirely unreasonable. Depending on the specific circumstances regarding the cold soggy burger, I might take different actions. None of those would include calling the police.

    I do find, however, that the actions of this McD store in this instance was unacceptable. As did, McDonalds Corporation.

    Personally, I find the actions of the customer in calling the cops extreme. But that’s me. Generally, my point in this discussion is that we don’t really know the circumstances in this situation. Initially, the story was “woman calls 911 because McDonalds was out of nuggets.” And everyone was laughing and appalled. Turns out there’s a lot more to the story. I’ve just always said that I can imagine many, many scenarios where her actions might be justified, even if it wasn’t something that I might do, I can think it something that a different reasonable person would.

    And it is McDonalds. People ought to be calling the authorities on them every day because of the food they serve. But that’s just me. Which is why I don’t eat there anymore. Ever.

  40. 40
    PG says:

    incidentally, the proof of that concept is somewhat inherent in the McD’s menu, in which people have the ability, based on taste, to choose from a variety of foods with similar prices and nutritional content.

    And it is McDonalds. People ought to be calling the authorities on them every day because of the food they serve. But that’s just me. Which is why I don’t eat there anymore. Ever.

    Compare and contrast while pondering the concept of “taste” as it relates to McDonald’s foodstuffs.

  41. 41
    Sailorman says:

    lol–I was thinking that as i was typing.

  42. 42
    bean says:

    I agree that there are circumstances where one could substitute food. If you had a contract with a school to supply 100 turkey and cheddar sandwiches, and you supplied 100 ham and swiss sandwiches instead, you might be fine: the point of the contract was “give the school something to serve to their hungry students,” not “satisfy the particular tastes of one particular individual who loves turkey.” Or if the food is being purchased merely for nutrition and with no regard for taste, then you could substitute something of equivalent nutritional value.

    I think you might be far from fine if the school you were supplying was the local Jewish school.