Law Society’s Gazette, 3 February 1982

Food and drink in Anglo-American law

The law has always had a particular interest in food and drink. In England, a barrister cannot even be called without eating the prescribed number of dinners, and although opinions vary on the quality of such dinners, there is no doubt that on formal occasions the Inns of Court can put on a very good show indeed. Solicitors on the other hand are admitted without any public demonstration of their eating and drinking abilities… In America, nobody seems to care whether attorneys eat or not, although there is some evidence that they live largely on hamburgers and cokes.

In its early days, the common law showed some solicitude for the buyer of food. Quality was regulated by the guilds, and punishment followed a breach of the rules: bakers could find themselves in the stocks. Since 1931, the law in the US has developed the concept of strict liability in tort, which is applicable to food and drink as much as to other products. Thus, the purchaser of a can of peas recovered damages for illness resulting from a worm in the peas. A customer in a restaurant recovered damages when the wine glass broke in his hand.

There seems to be no reported case in the American courts of a snail in a soft drink, but there are innumerable cases in which mice have been the cause of some distress, and at least one case in which a half-burnt book of matches was found.

Although the courts have thus been ready to compensate the victims of diseased food or of unwanted and unexpected foreign substances in food, they have also recognised that there are some unavoidable hazards in eating and drinking for which the law should not provide a remedy. The point was made by a Massachusetts judge in denying recovery for injuries caused by a fish bone in fish chowder, a typical New England dish. He said: ‘We are not inclined to tamper with age-old recipes by any amendment reflecting the plaintiff’s view of the effect of the Uniform Commercial Code… In any event, we consider that the joys of New England include the ready availability of fresh fish chowder.’