What if you and a restaurant can't agree on who is at fault for a credit card issue?

Question

This question established that, if a restaurant is suddenly unable to take all credit cards, and you don't have cash, then it is not a criminal matter and the debt would just be resolved through civil methods.

On the other hand, if you went to a restaurant with only a credit card that you knew full well was a bad card (or any other version of going to a restaurant knowing in advance that you can't pay), this is indeed a crime (theft of services).

But there's a middle case I'm not sure about. I once went to a restaurant, and I gave them two different cards from two different banks. I telephoned both banks directly in front of restaurant staff, and both banks confirmed the cards were good, but the restaurant continued to insist they weren't. After the incident, I continued using both cards, and they both continued to work with no problems.

In my case, I had a third card that inexplicably worked - but supposing I didn't.

I understand that the key issue is whether I had an intent beforehand to take food without paying, and I obviously know that I had no such intention. But now there is a dispute over whether I can prove what my intent was, and even though I was telling the truth, I can (sort of) understand that the restaurant (and the police) wouldn't necessarily take my word for it. Could this have been a criminal matter?

Footnote: The actual incident was regarding a prepaid to-go order, so I probably would have just not received the food. But let's assume the hypothetical version wasn't prepaid.

Answer 1

As the answer by Paul Johnson says, if you had no criminal intent, there was no crime. As the answer by Dale M says, the prosecution would need to prove that criminal intent along with the other elements of the crime.

Offering to make the call to the banks should be evidence that you had no criminal intent. Making the call and getting assurance from the bank should be evidence that you had good reason to think the cards were good, and thus has no criminal intent. That the cards were good subsequently (which could be shown by receipts or statements) would be further evidence to that effect. While such evidence might not strictly be required, it might help if a criminal case were brought, and mention of it might help persuade the authorities not to bring one.

Of course, the bill must still be paid, but that is a civil matter where there was no intent to avoid payment.

Answer 2

You don’t need to prove your intent. They do.

If you are charged with a crime, the onus is on the prosecution to prove the elements of that crime beyond a reasonable doubt. If having intent not to pay is an element, that is for the prosecution to prove, not for you to disprove.

Answer 3

If you believed the cards to be good, then it's exactly the same as if the restaurant card reader had failed. In any such case, you provide identification and agree on a payment deadline.

You are not guilty of a crime, because you had no criminal intent. So it is a civil matter.

Answer 4

The legal situation will be the same whether the failure is on their equipment or yours. You wanted and expected to pay, but we’re unable to do so through no fault of your own.

The real world consequences may differ, not because the law will see it differently, but because people may see it differently.

For instance if their equipment is obviously at fault, then it will be obvious to them that there is no attempt at fraud going on. If your equipment is not working, then that’s no longer obvious and instead of concluding that no fraud is going on, they may assume that there is and act accordingly. While this would be a mistake in the given scenario, people suffer from the results of others mistakes every day.

If you could whistle up a courtroom and a judge, the judge would undoubtedly rule that you had to pay the bill in a reasonable amount of time.

But since you can’t, what will happen will depend on how non-judges respond to the situation (managers, police, bystanders, prosecutors, fellow customers, etc).

Answer 5

"Intent" turns on whether you promptly pay them

You are correct that "intent" matters. However, your "intent" will be judged by your actions. Suppose:

• You show up the next day with cash, and settle your bill. You're in the clear.
• Four days later, a letter shows up, postmarked the day after, and with a paper check that doesn't bounce. You're in the clear. *

Even if the police had been called and proceedings had begun, this timely (for your part, nevermind the mails) payment would settle the matter and make a criminal prosecution impossible.

No way to re-coin this situation into a civil matter

People keep looking for "that magic event" that downgrades it from criminal to civil, or makes it so they do not need to pay at all. That's not a thing. I don't agree with another answer on that point.

Anything you do that "goes sideways, to the effect of not paying" is only more proof of intent. You can't expect to go into court and play a slapstick comedy of "how your every attempt to pay went wrong". It will only harm your credibility with the jury, because all of them know how easy it is to show up with some cash.

The only exceptions I can imagine are:

• filing of personal bankruptcy in the days afterward, in which you listed that debt; this is not evading debt, much the opposite: it is legally acknowledging and paying the debt to the best of your ability (via liquidation of your unprotected assets). In fact, this is better for the restauranteurs than a direct payment, which could be clawed back by the court since they were paid out of turn. We had that happen to us once... ouch!
• a deus ex machina event which would overwhelm or render unable a reasonable person, such as being arrested by immigration, mobilized to California to fight wildfires, ordered by your governor to stay-at-home, etc. However these would not cure the matter; the bill still needs to be paid when you are able.

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* However, an exception might occur at a USA marijuana dispensary: they can't use the Federally governed banking system because of drug money laws, so a check would be a hollow gesture to them. In that case, I believe the check would show enough "good faith" that no jury would buy criminal intent; however the state judge would compel you to pay them in cash or other appropriate means.