Originally Posted by
lkar
If you take the sticker off one car, forge a new number on it, and present it to Exxon and get gas, you would likely be guilty of theft by deception of A company's property in many states -- not mere breach of contract. You might be guilty of some other crimes too. Now, again, I don't know whether Amex's contract is as clear as the hypothetical one I drafted, but I disagree this could not be theft.
This would be theft of service, but the actual situation under consideration is not analogous to the hypothetical you propose. By forging the sticker, you've crossed the line into criminal territory. Your hypothetical is analogous to forging a boarding pass (or an AMEX Platinum Card) to gain lounge access. The two situations are quite different, and I agree that if you forged a boarding pass you would be guilty of theft of service.
Under AMEX's contract and your Exxon analogy, imagine that Exxon allows a free gallon of gas with any purchase from the TigerMart, and also that they have a liberal return policy. Purchase a stick of gum, intending to return it. Fill your tank with a gallon of gas. Return the gum under the valid return policy. Assume also that the terms and conditions of the promotion do not explicitly prohibit this.
That is not theft. It may be WRONG under any good definition of a moral compass, but it is not theft.
Originally Posted by
Steve in Olympia
It seems obvious why you are choosing to overlook that little, additional requirement stated in the Terms & Conditions: "The Platinum CardŽ member must be traveling."
A contract governs the relationship between the two parties. The first legal remedy at issue here is breach of contract, not theft of service. If there is no breach in a scenario like this, there cannot be theft (at least, that's what they taught us in law school)!
The requirements of the American Express contract do not specify or imply an intent to fly in order to gain lounge access. The contract simply requires that the person who desires to enter the lounge present a valid boarding pass and their American Express card. Acquiring the boarding pass is left up to the passenger and the airline, but the point is that any valid boarding pass will do. It would be a real stretch to say that the language "The Platinum CardŽ member must be traveling" implies a requirement to travel. In the absence of defined terms, contracts are usually interpreted based on the plain meaning. The contract could say "flying," but it doesn't.
Given the location of this clause within the contract, it seems highly unlikely that this was American Express' intent; rather, it appears they inserted it to clarify that a Platinum Cardmember cannot show up without a boarding pass (and with two travelers who have them), and obtain lounge access along with his guests.
As with any legal point, there will always be a different lawyer ready to argue the opposite site. And that, I think, is why people despise lawyers so darned much.
PS: for the ace lawyer, the one thing you COULD argue in re: breach is an implied covenant of good faith and fair dealing (e.g., that you took advantage of the promotion in bad faith). This is such an amorphous standard of law that the likelihood of it implying criminal liability is so remote as to be near-ludicrous. AMEX might be able to win on breach, though -- really depends on whether your judge sympathizes or not...