@zenvelo Well, it is definitely arguable. I believe I am right to abandon negotiations when I believe the person I’m negotiating with will not perform. If I got tired of waiting for what I thought was a reasonable time and then drove off and then was arrested for what is called defrauding an inkeeper (Florida), this is how I would present my case:
I would argue that no crime was committed because there was no binding contract between myself and the inkeeper. I would submit (1) there was insufficient consideration exchanged between myself and the purveyor, e.g. nothing of value, at the time the purveyor made the offer to provide me with a croissant and a cup of coffee for a specified price, and therefore there was no obligation to perform on my part at this point in contract formulation. In other words, no mutuality of obligation had been met. (See Elements of a Contract) Under this doctrine, both parties must be bound to perform their obligations or the law will treat the agreement as if neither party is bound to perform. Under this doctrine, both parties must be bound to perform their obligations or the law will treat the agreement as if neither party is bound to perform.
I would also (2) remind the court that, although there are other forms of consideration for contracts besides the exchange of money, in order to simplify things, the custom in the U.S. is that a portion of the agreed price of performance is paid up front in order to satisfy the contract element of consideration.
I would then be prepared to submit an overwhelming amount of precedent cases that hinged upon monetary consideration over consideration of performance and other sorts of consideration.
At that point, it is up to the judge or jury. In an unbiased court, I believe I would win. In our courts, it’s a crapshoot.
If I did lose, I would petition for appeal based upon the restaurant breaking the contract element of performance, or in this case, the lack of performance on the part of the restauranteur. I would submit that the ill-defined term “Fast food” states or implies that the purveyor will perform in such a way and that he did not and therefore I deemed the contract at that point null and void. And then I left. This case will of course come down to the definition of the term “Fast Food” and it’s common implications. I would submit that five minutes was too long to wait for “Fast Food.”
At that point, it would be up to a judge or a jury.
As I’m not a mind reader or a lawyer, or a person with a lot of faith that I would get an unbiased judge or jury, I have no idea how this case would come out.
I’ve been in drive-thrus that avoid this entirely in two ways:
(1) They take the full amount at the order window and in this way commit you to the contract.
(2) They don’t take the money at the order window, but if you look down at at the lane you are traveling in you might notice that it is about 11’ wide and bordered by 4” to 6” concrete curbs rising 90 degrees from the street. They are there to assist you in accepting their offer whether they perform in a timely manner or not.