To me, these signs are obnoxious and they certainly don’t give me warm fuzzy feelings about the business that displays them, but are they enforceable?
The short answer is maybe, but probably not. It depends on the circumstances and the law of the state.
What Law Applies?
First of all, there is no law – no statute on the books – that says that customers have to pay for commercially displayed merchandise that they damage.
And it certainly is not a crime to accidentally break things in a store, so customers cannot be prosecuted for dropping a figurine.
Instead, if a customer is to be held responsible for clumsiness or a child’s unsupervised exuberance, it will have to be done either under the law of contracts or negligence.
Is The Customer Responsible Under Contract Law?
The merchant would argue that the YBIYBI sign created a contract with the customer.
But a so-called “unilateral contract” — that is, a contract proposed by one party without explicit agreement by the other party — is only enforceable if it is clearly and unequivocally accepted.
The store would have to prove that the customer saw the sign, understood it and accepted its terms. Without the customer admitting those things, that would be very difficult.
Is The Customer Responsible Under Negligence Law?
Customers have a legal duty to exercise “reasonable care.” People need to act with reasonable caution and vigilance when in a retail establishment. If a running child or a swinging purse ends in broken merchandise, the customer may have to pay for the damage because of their negligence.
Of course, as with all legal claims, the party making the claim has to prove it. They have to prove what happened and that the actions of the customer constituted negligence.
Even if the customer acted negligently, there may be a defense to the store’s claim for damages.
Four states including Maryland, and the District of Columbia, have a rule called contributory negligence. This means that if a person making a negligence claim for damages was also negligent, their claim is totally defeated. So, if the store aisles are narrow, the store is allowed to become excessively crowded or the merchandise is shelved in a precarious position, the store may be held to be contributorily negligent and lose its claim against the customer.
States that don’t have the contributory negligence rule have something called comparative negligence. Under the various forms of that rule, the claim is reduced by the percentage that the claimant contributed to its loss. So if it is later determined that the store was, say, 40% responsible for the damage, its recovery would be reduced by 40%.
But wait, there’s still more.
If The Customer Is Responsible For The Damage, How Much Must He Pay?
“You Break It, You Bought It” implies that the customer must pay full price for broken merchandise.
But courts would probably not use full value as the “measure of damages” if it finds the customer responsible.
Instead, the court would probably award the amount of the merchant’s loss, which would be the wholesale cost.
The Pottery Barn Rule
Some people have called YBIYBI the “Pottery Barn Rule,” however the Pottery Barn has no such rule. Instead, according to published reports, the Pottery Barn treats customer breakage the way most businesses do, they consider it an expense of doing business and do not ask customers to pay for unintentional breakage.
**These questions and answers are designed to provide helpful information that can be read quickly. They are neither a full explanation of the subject nor legal advice. To learn more, and to receive legal advice on which you can rely, contact me or another lawyer.