| Date | 8 January 1997 |
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| Judgment | Coulter Mill Restaurants Ltd -v- Robert T Hogg. Sheriff's court, 7 November 1995 |
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| The Issue | Whether a meal ordered in a restaurant is a single contract or a series of separate contracts. |
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| Implication |
A builder who carries out works for a client under a series of different requests and who produces an itemised bill at the end generally does so under one contract but dissatisfaction with a single item of work does not disentitle the builder to be paid for the remainder of the works. |
printThis article starts with a story of a Christmas celebration. A wealthy businessman invites three guests to dinner at an exclusive restaurant. His guests are important potential clients, and tonight money is to be no object. Filled with good humour and festive spirit, before their meal they order a round of drinks. Doubles. 1972 Islay Malts in fact. The meal is wonderful: salmon, oysters and best Scottish beef prepared as an art form in the way only a Michelin three rosette restaurant can achieve, all washed down with the wine list's most expensive Chateau Lafitte. The evening had been a great success so far. Our businessman has all but secured the deals he was looking for. A round of liqueurs is ordered which the sommelier brings to their table with a flourish. Then disaster. The liqueur which has been poured into their glasses is spoiled and foul tasting. Scenes reminiscent of Fawlty Towers follow and finally our party of four leave the restaurant refusing to pay one penny for the meal. Now you will have your own opinions as to whether this could be considered to be reasonable conduct. These circumstances, slightly embellished, occurred in the case of Coulter Mill Restaurants Ltd -v- Robert T Hogg, heard in the court of the Sheriff Principal in Scotland on 7 November 1995. The restaurateur sued for payment of the bill but the Sheriff (the Scottish equivalent of a high court judge) held that the restaurant had been in material breach of its contract and dismissed the action. Who said that there was no such thing as a free lunch? Deeply unsatisfied with this decision, the restaurateur decided to take his case to appeal to the Sheriff Principal. In front of the appeal court he made two broad submissions. In the first place he argued that a customer in a restaurant who orders from the menu makes a series of contracts with the restaurateur, each of which binds him to pay the sum due for that item, although by convention the restaurateur usually presents a single bill for payment before the customer leaves. Solicitor for the restaurateur asserted that the customers had apparently been satisfied with everything apart from the liqueurs. Accordingly they must pay the amount of the total bill less the cost of the liqueurs. Alternatively, the restaurateur submitted that there was a single contract for services to be supplied by the restaurant, and since there had been substantial compliance with that contract, the restaurant was entitled to be paid their account under the deduction of the cost of the single item which was unsatisfactory. There had been no material breach on the part of the restaurateur which would entitle the customer to resile (rescind) and thus avoid payment of the whole bill. In support of this contention, lawyers acting for the restaurateur cited numerous cases and authorities including the textbook 'Gloag on Contract' where the author says: "A material breach of a contract does not entitle the party affected by it to escape liability for debts which have already accrued. To hold that it did would introduce the element of punishment, foreign to the law of contract. A tenant, although the circumstances may justify him in rescinding the lease or retaining his rent, remains liable for arrears." The solicitor acting for the customers argued in response to all of this that the Sheriff had been correct in holding that this was a single contract for the supply of services. The Sheriff was correct to hold that there had been a material breach of that contract. There had been a finding that the incident in relation to the liqueurs had spoiled the evening for the respondent and his party. Therefore the Sheriff was correct to have dismissed the action. Weighing all of this up, the Sheriff Principal considered that it was correct in law to hold that there was a single contract entered into between the parties. This was to be categorised as a contract for the supply of goods and services to the customer's order. The contract however was not to provide a perfect evening. There was to be an implied term that each item supplied to order would be of a reasonable standard. Thus when a person enters a restaurant, he looks at the menu and orders a course or perhaps two courses at a time. Each course satisfactorily provided imposes upon the customer an obligation to pay the price which is indicated on the menu. If any item is found to be unsatisfactory then payment for that item may not be due. If hackles are raised the evening may well be ruined but unpleasantness cannot result in the cancellation of charges already properly incurred. The intensity of the dispute cannot alter the materiality of the breach. The restaurateur should not, by observing a custom not to ask for payment until the customer has exhausted his requests, be made to forfeit his charge for the goods and services he has supplied which the customer has consumed and with which he is satisfied. Accordingly the appeal would be allowed and a decree was to be granted in favour of the restaurateur for the total bill, less the cost of the offending liqueurs.
CJ-9701
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