Drinking a beverage first and paying later: a crime or a common human act?

Compiled from: Beijing Youth Daily
 
Case review
Recently, a news story on a short video platform caught netizens' attention. A mother shopping with her child at a supermarket, seeing the child extremely thirsty, took a drink from the shelf and opened it for the child to have a few sips. To her, this seemed like a perfectly normal little thing. However, a dispute arose with the supermarket owner at checkout.

 
 

At the time, the mother took the opened beverage bottle to the counter to scan the code, but the supermarket owner refused to complete the transaction. He believed that drinking the beverage before paying and checking out constituted theft and demanded compensation of 10 times the price. The mother, however, was unwilling to accept this. She argued that the child had been too thirsty to resist drinking the beverage in advance, and she would certainly have paid the original price afterward, so why should it be considered theft?
 
 
How should the mother's behavior be defined?
1. In terms of criminal offenses:
First, the author believes that the mother does not constitute a criminal offense. According to the relevant provisions of the Criminal Law on theft, the crime of theft must satisfy the elements of a crime. According to the prevailing four-element theory, these are the subject, subjective aspect, object, and objective aspect.
 
The short video shows that after the mother gave the drink to her child, she did not hide the drink nor leave the supermarket premises. Instead, she voluntarily went to the checkout counter to pay. Therefore, subjectively, the mother had no intent to unlawfully possess the shop owner's property. Objectively, the dispute between the mother and the supermarket owner occurred at the checkout counter, and the mother offered to pay. Both the actor (the mother) and the subject matter (the drink) were still within the supermarket, within the control of the supermarket owner. The mother did not engage in any act that would cause others to lose control of their property. Hence, the mother does not constitute the crime of theft as defined in the Criminal Law.
 
2. Administrative violations
Based on the same analysis above, the mother also does not meet the conditions for theft under the Public Security Administration Punishments Law, and therefore no administrative violation exists.
 
3. Civil liability aspects
First, from the perspective of contract law, a sales contract relationship is formed between the supermarket and customers who come to purchase goods. Article 14 of the Contract Law stipulates that an offer is an expression of intent to enter into a contract with another party. Article 21 of the Contract Law stipulates that acceptance is an expression of intent by the offeree to agree to the offer. Article 25 of the Contract Law stipulates that a contract is formed when acceptance takes effect.
 
In this dispute, the supermarket placing the beverages on the shelf and marking the price constitutes an expression of intent to make an "offer." The mother, as a customer entering the supermarket, confirming the type of goods and accepting the price, and taking the beverage from the shelf constitutes an expression of intent to "accept," at which point the sales contract is formed. However, after the contract is formed, there is no clear agreement on when the payment obligation is to be performed, so it is difficult to conclude that the mother's conduct constitutes a breach of contract. Some may argue that it is an established convention in supermarket shopping to pay before using the goods, but this view cannot be generalized. Take dining in a restaurant as an example: some restaurants require payment after the meal, while others require payment before the meal.
 
Secondly, from the perspective of tort liability law, the main condition for constituting tort liability is the existence of fault. As mentioned above, the mother in this incident, as the buyer under the sales contract, had already reached a contract with the supermarket when she took the beverage from the shelf. She had the ability to perform the contract and expressed her intention to pay for the goods. Therefore, her behavior itself did not involve fault and thus does not constitute a tort.