After George is caught taking a book into the bookstore Brentano’s bathroom, the store makes George buy it. Does Brentano’s bookstore have the right to force George to purchase the book just because he took it into the bathroom?
The morality of reading in the bathroom notwithstanding, especially a book you haven’t actually yet purchased, it’s pretty clear that the store can’t actually immediately force George to do anything under these circumstances. The most analogous situation to the one George finds himself in is the ol’ “you break it you, you buy it” rule that many stores employ (firstly by a Miami shop way back in 1952). That rule is that if a customer breaks an item, then the store can demand the customer pay for it, regardless of whether they intended to purchase it. The rule makes a lot of sense, but even under those circumstances the store can’t actually force the patron to do anything. A store can’t detain a customer and make them provide payment right there on the spot. The best it could do is bring a claim in court and then, if the claim as successful, the court could force the customer to pay up.
If a store were to bring a lawsuit though, there are 2 legal theories on which it could prevail. The first is a tort theory of negligence. For instance, if a customer tripped over their untied shoelaces and broke something, or mishandled delicate items, then by tort law a customer could be deemed as being negligent since they did not take the proper care under the circumstances. The second is a contract theory. This theory would demand that the customer be put on some kind of advance notice that a certain act is prohibited by the store. Then, by entering the store, the customer is essentially agreeing to abide by the store’s terms, and if he or she violated them then that person would be in violation of the contract. So if a store put up a big sign in a prominent location indicating that “you break it you buy it,” then a customer is agreeing to that contract by entering the store and could be forced, by a court, to pay for the item then if they broke it.
So, would Brentano’s win a lawsuit against George? Under a contract theory we say likely no. Brentano’s does have a clear, visible, and prominent sign, posted right by the bathroom door – “bathroom not bookroom.” This sign is clearly saying that George, or any customer, should not bring a book on a wild ride into the bathroom. But the sign fails to note any consequences for that action. Therefore, it is likely not sufficient to mandate, under contract law, that a patron who does take a book into the bathroom must buy the book.
But what about a negligence theory? Every jurisdiction has their own precise definition, but generally speaking to violate a negligence tort means that a person would have to fail to behave with the level of care that an ordinary person would under the same circumstances. From the (small) sample size of the people that find out about what George did, it’s pretty clear that George did not exercise the appropriate standard of care here. Jerry, Elaine, and Rebecca DeMornay are all horrified by even being in the presence of the book, let alone touching it. Jerry is a notorious neat freak, so he might not be considered an ordinary person either, but certainly Elaine or Ms. DeMornay are fine examples of what standard of care is demanded from the ordinary person. Therefore, there is a pretty good likelihood that if Brentano’s were to sue George, the store would prevail.
Notably, many stores don’t even make customers pay for items that they break. They just utilize the broken merchandise as a write off for tax purposes (if you don’t know what that means, don’t worry, we have you covered).
George’ s best strategy here was to force Brentano’s to bring a lawsuit rather than just paying for the book. The likelihood of Brentano’s going through all that work for a hundred bucks is pretty small. Either way, not a good idea to bring a book into the bathroom until after you’ve purchased it. Besides for violating a social code, it might not end well overall.