Sunday, February 14, 2016

Implied No Latinos Allowed: Why Chef José Andrés Should Not Have To Open New Restaurant in Trump Hotel Despite Contract by Maricela Lechuga

I.               Introduction

Donald Trump’s disparaging comments about Mexicans and immigrants, have offended José Andrés such that he no longer wishes to open a restaurant in Trump’s muti-million redevelopment project in Washington, D.C. As a result, Trump has threatened to sue for performance of the contract, which could include ten years of unpaid rent loss in earning potential.

II.             Background

On June 16, 2015, potential presidential candidate for the Republican party, Trump unapologetically called Mexican immigrants rapists and drug dealers.[1]  These comments added fuel to the impassioned discord surrounding immigration leading dozens of companies to boycott Trump in solidarity with Mexican immigrants, and immigrants and Latinos generally.[2]  Amongst those who have chosen to boycott Trump is D.C.-based super-chef José Andrés who recently tried to sever ties with Trump and the prior contract to create a restaurant in the historic Old Post Office Pavilion in Washington, D.C.[3]

III.           Analysis

a. The contract between Andrés, and bigoted business-mogul, Trump for the opening of a José Andrés Restaurant in a forth-coming Trump hotel in D.C. should be void for commercial impracticability, breach of a morality clause, and frustration of purpose.

A.   Commercial Impracticability

The contract between Trump and Andrés is void for impracticability. Commercial impracticability requires that a party show there was an unexpected occurrence; that the risk of such an occurrence was not allocated by the agreement or custom; and that the occurrence made performance impractical.[4]

In National Ass’n of Postmasters of U.S. v. Hyatt Regency Washington, for instance the commercial implacability doctrine did not apply when a hotel customer needed to cancel a conference because the contract had allocated the risk of such an unforeseen event.[5]

While Trump has long had the reputation of crassly expressing his controversial opinions, his presidential candidacy and recent hate-speech against Mexican immigrants has become even more inflammatory than before.  This sudden change has substantially altered Andrés’ ability to carry out the promise to open a restaurant in an a building owned by Trump.

Trump’s disparaging comments against Mexicans and immigrants along with his rhetoric promising to “Make America Great Again,” is stoking a nationalistic fervor that makes some Americans feel as though they are under attack.[6]

Trump followers shout “white-power” at his rallies and the Daily Stormer, a conservative, Neo-Nazi publication openly endorses Trump.[7]  

Although not blatantly denying service to Mexican immigrants, Trump’s hate-speech has created an implied “No Mexicans Allowed,” reminiscent of a time before laws protected the rights of ethic and racial minorities to be accommodated in public institutions and business.[8] 

Trump’s hate-speech has, moreover, begun to incite violence against Latinos in the U.S.  For example, as seen by the beating of a homeless Latino man in Boston this past August.  The man’s two assailants added insult to injury by urinating on him, and stating that “Donald Trump was right, all these illegal’s need to be deported.[9]  Extreme levels of hostility towards immigrants are also expressed by Trump followers at rallies such was the case on October 15, when a Trump supporter spit on an immigrant rights activist.[10]

Andrés is himself a—proud immigrant—and recently stated “I call myself a proud American Citizen...[and] I am an immigrant [and] I know where I belong—in America! “We the people” means every single human being.”

In addition to being a proud immigrant, 50% of Andrés’ staff are Latino; it would be difficult for Andrés to work in and hire staff to work in a building owned by Trump.
Andrés and his employees might fear harassment or mistreatment by the passionate Trump followers who agree with Trump’s hate-speech.

José Andrés would also likely become the target of boycotts by his loyal Hispanic, Latino, and progressive followers.

These changed circumstances have made the contract impracticable since it would result in economic and reputational damage to the José Andrés brand.[11]

The contract between Trump and José Andrés is thus void for impracticability and thus unenforceable.  If not, the court should find that the contract is void for commercial frustration.

B. Commercial Frustration

The contract between Trump and Andrés is void for commercial frustration.  Courts find contracts void for commercial frustration when a party’s principle purpose is substantially frustrated, without the complaining witness’ fault, and the event was a basic assumption on which the contract was made.[12]  

In Groseth Int’l., Inc. v. Tenneco, Inc., for instance, the plaintiff’s claim rested on an alleged frustration of economic depression in the farm economy resulting in serous economic losses.[13]  The court instead found the actual frustration was the plaintiff’s decision to sell off its division of assets and withdrawal from the market.  Because it was the plaintiff’s actions that lead to the frustration, the court held the doctrine of commercial frustration did not apply.[14]

In this case, Andrés’ creative restaurants are a celebration of different cultures, many of which are inspired from Latin America.  Associated with his brand, image, and reputation as a culinary expert, is Andrés’ unique restaurant concepts, which integrate art, music, and of course food, from different cultures, which in unison offer culturally rich experiences to their guests.  

His most recent DC restaurant China Chilcano is, for instance, a celebration of the amalgamation of Peruvian and Chinese cuisine inspired from the Chinese-Peruvian subculture. Guests are exposed to a menu that parallels the two universes that are Peruvian and Chinese cuisine.  Amongst the options are for instance, sushi and ceviche; pisco sour and sake; and hoisin and tamarind.  Restaurant guests can sit on the ground asian-style, under a ceiling ordained with geoglyphs and biomorphs found in Nazca, Peru, which are emblems of pre-Columbian Peru.  Through restaurants like China Chilcano, José Andrés restaurants are intended to bring other cultures and countries to life.[15]

The purpose of opening a José Andrés restaurant in a building owned by Trump is, therefore, frustrated by Trump’s narrow-mindedness and xenophobic remarks against immigrants, particularly Mexican immigrants.
The contract between Trump and Andrés should be void under the Frustration of Purpose because Trump’s intolerant remarks against immigrants frustrates the purpose of a José Andrés restaurant which seek to provide both a cultural and culinary experiences.

C. Trump’s Breach of a Potential Morality Clause

The contract between Trump and Andrés is void for breach a potential morality clause. Morality clauses, if included in a contract, serve as a sort of backdoor exit for contracting parties when one party does something that might degrade the other party’s reputation.

In Bernsen v. Innovative Legal Marketing, LLC, for instance, the agreement between the parties contained a morality clause prohibiting a party from doing anything that might bring the other party into public disrepute.[16]  

While the disputed contract between Andrés and Trump has not been released to the public, often times, business contracts include a morality clause.  If the contract between Andrés and Trump included such a morality clause, then it is likely that Trump breached the contract first, as Trump has failed to conduct himself with regard for public morals and decency. [17]  Andrés’ indirect endorsement of Trump by compliance with the contract would besmirch the José Andrés brand as it would bring into question his reputation in the community and amongst followers, who believe in the José Andrés philosophy that food can change the world.[18]

The contract between Trump and Andrés should be void for breach of a morality clause, if one was included.

VI. Conclusion

The contract between José Andrés and Donald Trump should be void for commercial impracticability, frustration of purpose, breach of a potential morality clause.

[1] Michelle Ye Hee Lee, Donald Trump’s False Comments Connecting Mexican Immigrants and Crime, The Washington Post, July 8, 2015, available at
[2] Kyle McCarthy, The Complete Interactive List of Those Dumping Trump, The Huffington Post, July 7, 2015, available at
[3] Emily Heil, José Andrés Hits Back At Trump Over Restaurant Deal; Counter-Sues For $8 Million, The Washington Post, Oct. 7, 2015, available at
[4] National Ass’n of Postmasters of the United States v. Hyatt Regency Washington, 89 A.2d 471, 477 n. 5 (D.C. 2006)(citing Transatlantic Fin. Corp. v. Unites States, 363 F. 2d 312, 315 (1966).
[5] National Ass’n of Postmasters of U.S. v. Hyatt Regency Washington, 894 A.2d 471, 475 (D.C. 2006).
[6] Barrett Holms Pitner, Ok , This Trump Thing Isn’t Funny Anymore, The Daily Beast, Aug. 27, 2015, available at
[7] Id.
[8] See Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, (Dec. 14, 1964).
[9] Lorenzo Ferrigno, Donald Trump: Boston Beating is ‘Terrible,’ CNN Politics, August 21, 2015, Trump, available at
[10] Alana Horowitz Satlin, WATCH: Trump Rally Turns Violent, The Huffington Post, Oct. 15, 2015, available at
[11] Telephonic Interview with Tony Varona, Dean at American University Washington College of Law, September 24, 2015.
[12] Groseth Int’l, Inc. v. Tenneco, Inc., 410 N.W.2d 159, 165 (S.D. 1987) (citing Restatement (Second) of Contracts § 265 (1981)).
[13] Id. at 166.
[14] Id.
[15] See, e.g., Tom Sietsema, China Chilcano Review: Strap in For Fun, But Bumpy, Ride from José Andrés, Washington Post Magazine, (describing the piscou sours as brining Lima to Washington in restaurant review) April 1, 2015, available at
[16] Bernsen v. Innovative Legal Marketing, LLC, 885 F.Supp.2d 830, 834 (E.D. Va. 2012).
[17] See Ford & Harrison LLP, Morals Clause Forecloses Claim of San Antonio TV Reporter, Texas Employment Law Letter, 21 No 8 Tex. Emp. L. Letter 2. Standard (for an example of a standard morality clause).
[18] Id.

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