Jonathan–I’m simply discussing what I consider to the basic contract principal involved. If a wine is truly defective (for whatever reason, and regardless of negligence), then I believe there has been a breach of contract. Whether I as the consumer choose to take a particular defective bottle back to a winery is a somewhat different question.
Bruce
We’re a ton, ton, ton smaller than they are…but even a start up retailer will (+ should) replace those.
I’d also suggest pushing for them to send a separate package of those 2 wines, even if you have an upcoming shipment. Those type of add ons get lost more than they should.
BTW, since we buy direct we aren’t getting credit from anyone for a bad bottle-simply eating the cost because it is simply the right thing to do. I think any winery or retailer that wants your continued business would do the same-
I received a very classy and prompt response from Cakebread as follows:
Hello, Scott:
Thank you for alerting us to this problem.
The way this will work is that we can replace the bottles for you, but would like to have as much of the wine back as possible. In future, please retain as much of the wine as possible as well as the matching corks. We like to have the wine back for analysis.
We will create a replacement for you for 2 bottles of Merlot; in the box with the new wine when it arrives will be paperwork for you to send back the single bottle that still has wine in it to us. Take out the new bottles, put in the single bottle, apply the return label(s) to the outside of the box and you can either call for a pick up or drop it off at the nearest UPS Store or facility.
Thank you for the photograph – that helps us as well.
All the best,
Mary
Doing the right thing is always the best business!
Bruce is spot-on here. Wineries are “merchants”, as defined in the UCC, and are in the chain of distribution (w/r/t wine); therefore, they are liable for any defective goods sold and/or distributed by/through them.
Additionally, wineries have the power to build into the price of each bottle of wine they sell the cost of replacing the occasional corked bottle.
As to the first paragraph, a corked bottle is WAY different than “we don’t like it.”
The second, the restaurant absolutely, unquestionably should take back the corked bottle and they should return it to their supplier.
IMO, Cakebread did the unequivocal right thing and look what it got them: we all know that they will stand behind their product. ![[cheers.gif]](/uploads/db3686/original/2X/0/0ff9bfcdb0964982cd3240b6159868fbdf215b1a.gif "cheers"){kind=small}
I’m not sure it has to get into contract law or tort law or anything else like that. First, there are plenty of people who wouldn’t know or care if their wine had TCA. I can’t remember how many people I’ve seen happily drinking corked wine. So one might even argue that it’s a characteristic of wine, like mold on blue cheese. Not sure how far they’d get with that line, but who knows.
More importantly though, most wineries want to do right by their customers and replacing a couple of bottles now and again, for customers who know and care, is just good business.
What you can do to help them is to take pictures of the cork as well, particularly if there is some kind of lot number or something on it. A close friend was fanatic about that but when he did it and contacted the winery, the winery was then able to identify the specific batch of corks. In one case they pulled those bottles and changed cork companies.
And as mentioned by someone else, cork is the main way, but not the only way, TCA can be introduced. It’s also found on wood pallets, barrels, and a host of other things.
Good for Cakebread in this case.
I’m not a lawyer so I don’t know the legalities of “implied contracts.” Nor do I think, there is ever likely to be case law about taking back corked bottles. But does anyone really this is an enforceable contract? If it is not, then really it isn’t a contract. You are arguing an ethical obligation.
I do believe it’s enforceable. As you point out, however, the time and expense of enforcing it probably wouldn’t be worth it to the consumer. I show my appreciation of retailers and wineries who replace corked wines by giving them my business; for those who don’t offer replacements, I voice my displeasure with my wallet by taking my money elsewhere. Simple.
Just like losses from other sources, such as breakage or theft, cork taint is part of the cost of doing business. That said, it would’t surprise me at all if wineries or merchants tried to get some sort of allowance or compensation from somewhere upstream in the system.
I think 9/10 wineries will replace the bottles - no returns necessary. On the off-chance they do want one back, just re-cork and hold on to the bottle(s) until you’ve heard from them. Replacing older bottles does present more complexity. I’ve found wineries perfectly willing to substitute the older bottle with a newer one. Merchants I’ve dealt with will do the same as well - largely contingent on being a “regular” customer.
No, I’m talking about the contract issue, not “ethics” as such. But ask any other attorneys you know whether sales of goods such as bottles of wine include implied warranty of fitness and merchantability. I think you’ll get fairly consistent responses. Of course, parties may attempt to include disclaimers of implied warranties.
For an individual bottle, it is unlikely to lead to litigation, and thus won’t result in an appellate opinion. But if there’s a dispute about a sufficient quantity of wine worth significant amounts of money, then it may result in litigation and thus an appellate opinion. Here’s a link to one case discussing the implied warranties in sales of wine between two entities:
http://masscases.com/cases/sjc/393/393mass666.html
In sum, my posts address what I believe to be the contractual issues involved in sales of corked, defective bottles of wine, and not the ethical or business judgment issues. I hope I’ve clarified that topic.
Bruce
You deserve to get your money back almost to the point of expecting it back. However, some producers are better at these things than others.
As far as a retailer/restaurant just sending back to the supplier for a replacement? In some places that is a lot easier said than done. But with a producer’s wine club I think the situation is different.
JD
Bruce,
I’m totally perplexed as to why you would apply “law” to this issue. As you know, this is an Internet message board where determinations (and discussions thereto) are based on our feelings and personal sense of propriety, rather than any real world conditions or analysis. ![[thankyou.gif]](/uploads/db3686/original/2X/d/df165fe9c1593d19166ae7e1ffe5e272089cc07b.gif "thankyou"){kind=small}
Carry on. [fill in the humorous emoticon of your choice].
Bruce
+1
It is the winery’s responsibility to stand behind their product. They should price accordingly to handle the expense of breakage and spoilage just as every other business does.
I think it’s downright stupid to require corked bottles to be returned, no matter who is paying for shipping. It’s just not an issue that any significant number of consumers are drinking good wines and later claiming the wine was corked and wanting refund / replacement.
My own experience is most of the wine returned to me as corked (by retailers and restaurants) isn’t, which also suggests that most of the corked bottles of the wines I sell are being drunk. The average consumer (not referring to the users of this board, obviously) don’t have any idea what the word ‘corked’ means, let alone what it smells and tastes like.
Or, they didn’t like the wine and are claiming a flaw to get a refund.
That too.
I think the average diner thinks they are being offered a taste of the new wine in order to see if they like it or not; if they don’t, some less-than-fabulous restaurateurs just write ‘corked’ on the label and return it.
Many people who sell wine don’t know what corked wine is either. I once asked a group of 25 waiters I was training for a new, supposedly wine-savvy restaurant if they knew what the word ‘corked’ meant; 1 person kind of knew.
Of course it is an enforceable contract. Why wouldn’t it be? I don’t know why you state that it is an “implied contract.” There’s nothing implicit about it. There are “implied warranties” but that doesn’t mean that the contract itself was implied.
Bruce is quite right. I have considered this issue recently in regards to a retailer whose official policy runs contrary to their UCC obligations, and who misstates CA law on their website in an attempt to justify that policy.
While the contract is enforceable, it is probably true is that the cost is prohibitive for anyone to litigate such small matters. That is a big part of why class actions exist, because sometimes violations of the law are not individually worthwhile to litigate, but if handled as a group they become worthwhile.
As to the “ethical” issue* of who “should” bear the cost of flawed wine, the answer is that of course the producer (or retailer) should. The economies of these transactions dictate that they can spread the cost of flawed wines out so that no one actually eats the cost. It should be relatively negligible. It makes no sense for the purchaser to bear the risk.
*I personally don’t find this to be an ethical issue at all, really.
All of this.