What to do if you get sick eating take away food?

Antonio was tired and hungry after a long day from work. It was raining cats and dogs outside and he had no intentions of going out to grab dinner. No more instant noodles this time. It was time for some takeaway food.

Grabbing his phone, he opened an application called Hangry Shark. Hundreds of restaurants unfolded before his eyes. Japanese food, Korean food, Mexican food, you name it. Finally, he settled on his favourite noodles, Xinjiang beef noodles.

Switching on his favourite show, Black Mirror, he waited for his noodles to arrive. Not long after, the doorbell rang and he was greeted with a dripping wet delivery person. Thank god he did not go out for dinner. He eagerly opened the plastic box and yuck! What was that smell? The noodles were definitely inedible.

Antonio was definitely not impressed. Half an hour of waiting for mouldy noodles? It was time for a complaint. Where was the telephone number of the noodle shop? He could not find it anywhere. Not on the box, not on the receipt, not on the application. Well, time to call customer service then.

“Hello, am I calling Hangry Shark?”

“Yes sir, how can we help you?

“The noodles I received a minute ago stinks. It is mouldy. I want a replacement or a refund.”

“But why are you calling us? Did we serve you the noodles? What does mouldy noodles have to do with us?”

“No, but I bought the noodles via your application. Therefore, I want an answer.”

“Earth to Antonio! We did not make you those noodles. We are only an online platform. Take your complaints to the vendor instead.”

“Give me their telephone number then.”

“Are you living in the Bronze Age? Search it up yourself on the internet. Don’t waste my time.”

What can Antonio do in this case?

Law In A Minute

You may be wondering why Hangry Shark has to be responsible for food that it did not even produce. After all, it is just a platform, but not the actual person who sells the noodles.

Have you heard of the term “privity of contract”?

Simply put, Antonio’s purchase automatically forms a contract between him and the noodle shop and binds them legally. A simple act that you perform every day like buying coffee at your local Starbucks is also contractual behaviour, only that the contract is not a formal one. Privity of contract means that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract.

The contract between Antonio and the restaurant binds only Antonio and the restaurant, not any others. It would be ridiculous to sue any other person rather than the fruit shop for selling you fake apples, wouldn’t it? That’s why Hangry Shark thinks that they are not responsible for the mouldy noodles.

According to Food Safety law, a third-party platform operator providing online food transaction services must review and supervise the vendors providing services through the platform. If a vendor infringes the interests of the consumer, the third-party platform operator is obliged to assist the consumer in defending his legal rights.

The third-party platform operator must provide consumers with the real name, address and valid contact information of the food merchant. If the third-party platform operator is unable to do so, they shall be liable to compensate the consumer for his/her loss instead. Therefore, Hangry Shark has to compensate Antonio for his loss if it refuses to provide the telephone number of the of noodle shop.

Legal Basis

Food Safety Law – Article 62

The provider of a third-party online food trading platform shall register the legal names of food traders admitted to the platform and define their food safety management responsibilities; and check the permits of those that are required to obtain permits.

Article 131

Where the provider of a third-party online food trading platform, in violation of this Law, fails to register the legal name of food traders admitted to the platform or examine their permits, or fails to fulfil its obligations such as reporting and ceasing providing online trading platform services, the food and drug administrative department of the people’s government at or above the county level shall order it to take corrective action, confiscate its illegal income, and impose a fine of not less than 50,000 yuan but not more than 200,000 yuan on it; if there is any serious consequence, it shall be ordered to cease operations, or its permit shall be revoked by the original permit-issuing department; and if any damage is caused to the lawful rights and interests of consumers, it shall assume joint and several liabilities with the food trader.

Edgar Choi is author of “Commercial Law in a Minute” and host of a legal-advice account “Law in a minute” on WeChat

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