Hospitality Law Questions

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Chapter 4 Hospitality Contracts

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© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Hospitality Contracts

 Introduction to Contracts  Components of an Enforceable Contract  The Uniform Commercial Code  Preventative Legal Management and

Contracts

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

In This Chapter, You Will Learn: 1. The two basic types of valid business contracts. 2. The four essential components that must be

present to create a valid contract. 3. The purpose of the Uniform Commercial Code

(UCC). 4. The consequences of breaching an enforceable

contract. 5. How to avoid legal difficulties related to

contracts before they arise.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Introduction to Contracts

 Legalese:

Contract – An agreement or promise made between two or more parties that the courts will enforce.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Introduction to Contracts

 Legalese: Plaintiff - The person or entity that

initiates litigation against another. Sometimes also referred to as the claimant, petitioner, or applicant.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Introduction to Contracts

 Legalese: Defendant - The person or entity against

which litigation is initiated. Sometimes referred to as the respondent.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.1

In response to a telephone inquiry, Vincent's Tree Service offered to trim an apple tree on the lawn outside the front lobby of the Olde Tyme Prime Rib restaurant, for a fee of $500. Mr. Wilbert, the restaurant's manager, agreed to the price and a start date of Monday.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.1

At noon on Monday, Vincent's informed Mr. Wilbert that the job was completed. The tree trimming went fine, but a large quantity of branches and leaves from the tree were left neatly piled near the tree's base. When Mr. Wilbert inquired about the removal of the debris, Vincent's stated that removing it had never been discussed and was not included in the quoted price.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.1

Mr. Wilbert agreed that the topic of removal was never discussed but stated that it is generally assumed that when a company trims a tree, it will remove the brush it generates; therefore, he refused to pay until the brush was removed.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.1

1. Which party's posiyion seems valid to you? Why?

2. How would you suggest the issue be resolved between these two contracting parties?

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.2

Jeremy Moss’s credit card was billed $450.00 by the Langford Inn. The charge was a “no-show” charge that resulted from Mr. Moss not arriving at the hotel on a night that “he” had reserved, via the hotel’s Web site, two rooms (at $225.00 each). The hotel had been sold out that night, and the rooms, in keeping with hotel policy, had been held for Mr. Moss until 4:00 A.M. the next morning.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.2

Mr. Moss contacts the hotel when he receives his credit card statement and protests that he never made the reservations. The reservation data collected on the Web site lists Mr. Moss’s actual address and his home telephone number as well as the credit card number billed by the hotel. Mr. Moss, however, still maintains that he did not make the reservation, and thus demands that the “no-show” billing be removed from his card.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.2

1. Do you believe the hotel is justified in charging Mr. Moss for the no- shows?

2. How could this hotel prevent such misunderstandings in the future?

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Components of an Enforceable Contract

 Legalese: Enforceable contract - A contract

recognized as valid by the courts and subject to the court’s ability to compel compliance with its terms.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Components of an Enforceable Contract

 Legalese:

Offer – A proposal to perform an act or to pay an amount that, if accepted, constitutes a legally valid contract.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Components of an Enforceable Contract

 Legalese: Consideration - The payment/value

exchanged for the promise(s) contained in a contract.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Components of an Enforceable Contract

 Legalese:

Acceptance - Unconditional agreement to the precise terms and conditions of an offer.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Components of an Enforceable Contract

 Legalese:

Counteroffer – Conditional agreement to the terms and conditions of an offer that includes a change to those terms, creating a new offer.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Components of an Enforceable Contract

 Legalese:

Express contract – A contract in which the components of the agreement are explicitly stated, either orally or in writing.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.3

JoAnna Hart was offered a position as director of foodservice for the independent school district of Laingsford. She received a written offer of employment on the first of the month with a stipulation that the offer would be in effect until the 15th of the month.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.3 If Ms. Hart were to accept the employment

offer, she would have to sign the employment contract and return it to the Laingsford Superintendent of Schools before the offer expired on the 15th.

Upon reading the details of the contract, Ms. Hart felt that the salary identified in the letter was too low, and thus she adjusted it upward by $5,000, initialing her change on the contract copy.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.3

She then returned the offer letter to the schools superintendent with a cover letter, stating she was pleased to accept the position as detailed in the contract. The contract arrived by mail in the office of the superintendent on the 14th of the month, at which time, the superintendent called Ms. Hart to express his regret that she had rejected the employment offer.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.3

During the telephone call, Ms. Hart realized that the superintendent would not accept her salary revision proposal, so instead, she verbally accepted the position at the original rate of pay. The superintendent, however, declined her acceptance, stating that the original employment offer no longer existed.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.3

Does the school have the legal right to withdraw its offer of employment? Why or why not?

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Search the Web 4.1 Log on to the Internet and enter:

www.yahoo.com. 1. Under Search, type “hospitality contracts.” 2. Search for stories related to contracts and

contract negotiations that are making headlines in the news, nationally or in your area.

3. Print out one of the articles and be prepared to summarize it in class.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

The Uniform Commercial Code (UCC)

 Legalese: Uniform Commercial Code (UCC) - A model statute covering things such as the sale of goods, credit, and bank transactions.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

The Uniform Commercial Code (UCC)

 Legalese:

Caveat emptor – A Latin phrase meaning “let the buyer beware.” The phrase implies that the burden of determining the relative quality and price of a product falls to the buyer, not the seller.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

The Uniform Commercial Code (UCC)

1. To simplify, clarify and modernize the law governing commercial transactions.

2. To permit the continued expansion of commercial transactions.

3. To provide for consistency in the law regarding the sale and financing of personal property in the various jurisdictions (municipalities, counties and states).

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.4

The Smoking Bones BBQ restaurant serves an excellent spinach salad as an accompaniment to its popular chicken and rib dishes. Michelle Brennan, the restaurant’s manager, purchases all of her produce, including fresh spinach used in the salads, from a local vendor.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.4 Unfortunately, one of Ms. Brennan’s guests

becomes ill after eating at her restaurant. The source of the illness is traced directly to the fresh spinach used in the restaurant’s salads. In fact, upon further investigation, it is determined that the spinach, when delivered to the restaurant’s produce vendor, was already infected with E. coli bacteria that matched a strain identified in cattle manure used to fertilize the spinach field.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Analyze the Situation 4.4 1. According to the UCC, a seller has a

responsibility not to sell defective products. Who, in this example, is the seller?

2. Assume that you were the guest sickened by the bacteria. Who do you believe should be held responsible for the damages you incurred?

3. What specific steps could Ms. Brennan take to help prevent incidents such as the one described here from reoccurring in her restaurant?

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Breach of Contract

 Legalese: Breach of contract - Failure to keep the promises or

agreements of a contract.

Force majeure – Greater force; a natural or human- induced disaster through no fault of the parties to the contract that causes a contract to not be performed.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Breach of Contract

 Legalese:

Damages - Losses or costs incurred due to another’s wrongful act or omission.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Remedies and Consequences of Breaching an Enforceable Contract

1. Suit for specific performance. 2. Liquidated damages. 3. Economic loss. 4. Alternative dispute resolution.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Remedies and Consequences of Breaching an Enforceable Contract  Legalese:

Arbitration - A process in which an agreed- upon, independent, neutral third party (the arbitrator), renders a resolution to a dispute. The decision of the arbitrator is known as the “award.”

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Remedies and Consequences of Breaching an Enforceable Contract

 Legalese: Mediation - A process in which an appointed, neutral third party (the mediator), assists those involved in a dispute with resolving their own differences. The result of mediation, when successful, is known as the “settlement.”

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Statute of Limitations

 Legalese: Statute of limitations - Various laws that set

maximum time periods in which lawsuits must be initiated. If the suit is not initiated (or filed) before the expiration of the maximum period allowed, then the law prohibits the use of the courts for recovery.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Preventing Breach of Contract

1. Get it in writing. 2. Read the contract thoroughly. 3. Keep copies of all contract documents. 4. Use good faith when negotiating

contracts. 5. Note and calendar time deadlines for

performance.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Preventing Breach of Contract

6. Ensure the performance of third parties. 7. Share contract information with those

who need to know, and educate staff on the consequences of contract breach.

8. Resolve ambiguities as quickly and fairly as possible.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Establishing an Effective Reservation Policy

 Legalese: Confirmed reservation - A contract to provide a

reservation in which the provider guarantees the guest’s reservation will be honored until a mutually agreeable time. A confirmed reservation may be either guaranteed or nonguaranteed.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Establishing an Effective Reservation Policy

 Legalese: Nonguaranteed reservation - A contract to provide a confirmed reservation where no prepayment or authorization is required.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Establishing an Effective Reservation Policy

 Legalese: Guaranteed reservation - A contract to provide

a confirmed reservation in which the provider guarantees the guest’s reservation will be honored regardless of time of arrival but stating that the guest will be charged if he or she no-shows the reservation. Prepayment or payment authorization is required.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

What Would You Do? Assume that you manage a 300-room

hotel. Your local university football team is playing a home game on Saturday, and demand for rooms far exceeds supply. Your no-show rate on reservations for the past three football games has been 8, 12, and 9 percent respectively. Currently you have 100 nonreserved rooms.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

What Would You Do? Prepare a brief report (half-page) describing how you would answer the following questions.

1. How many room reservation contracts are you willing to accept?

2. Should you require that all reservations be confirmed?

3. What factors will you consider as you make your decision? What strategies will you employ to reduce no-shows?

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

What Would You Do? Write a short essay (half-page) answering questions 4 and 5, drawing from your personal perspective.

4. You and your family are traveling out of state to attend one of your school team’s away football games. Upon arrival, the hotel where you have a confirmed reservation denies you a room because it has none available. What do you think the hotel should do for you?

5. What if no other rooms were available within a 50- mile radius of the hotel you originally booked at?

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Rapid Review 1. Describe two hospitality situations in which a verbal

contract is superior to a written contract, and explain why you believe it to be so.

2. Discuss “legality” as a major component required of an enforceable contract. Give a hospitality example of “legality” coming into question.

3. Using the Internet, go to the home page of a national hotel chain. Evaluate the hotel chain’s reservation booking system from a legal perspective. Address specifically the concept of consideration.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Rapid Review 4. You are the General Manager of a midsized

hotel. Draft a memo for your front desk staff describing the rationale and policy for billing guests with a confirmed reservation who do not arrive at the hotel to use their rooms.

5. Give a hospitality example that illustrates why it is so important to establish acceptance of an offer prior to the formation of a contract.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Rapid Review 6. On a busy weekend, you have forecasted that 10

percent of your dining room reservations will no-show. Create notes that you would use to explain to your reservationist why he or she should continue to book reservations when you are past capacity.

7. Consider the concept of “statute of limitations,” as it relates to a guest who has experienced an unsatisfactory meal in your restaurant. At what point do you believe the guest would lose his or her right to protest the quality of products (menu items) purchased from you. Defend your answer.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Rapid Review 8. You purchased a warranty for your telephone

system that provides 24-hour response time from the vendor. Draft a letter to the vendor protesting the breach of contract that resulted when it took 3 days for you to get service. Remember that your goal is to have a professional relationship with the vendor, as well as a working telephone system.

© 2017 Stephen C. Barth P.C., Diana S. Barber, JD and John Wiley & Sons, Inc. All Rights Reserved

Think about this on your way out...

One beautiful evening, your resort hotel was in the process of hosting a very large, expensive wedding ceremony and reception out on the lawn area near the pool. During the reception, an ambulance arrived on the scene as an elderly gentleman, sitting at the pool bar which had already closed for the day, had suffered a heart attack and died peacefully watching the Hawaiian sunset. The bride and groom were so distraught by the noise and disturbance during their big day that they demanded compensation for the breach of contract by the hotel.

What would you do?