More Unilateral Contracts with Teeth

trump-nyc-birth-certificate

From Facebook to the Tonight Show, unilateral contracts abound. This latest high-profile case features the host of Real Time with Bill Maher, Mr. Bill Maher himself, and none other than Donald J. Trump (the J. stands for Just-how-much-money-will-I-waste-on-public-spectacle” [his grandmother’s maiden name]). Mr. Trump’s lawyer provides a synopsis of the unilateral contract at issue through his January 8, 2013 letter:

Dear Mr. Maher:

I represent Mr. Donald J. Trump.  I write on his behalf to accept your offer (made during the Jay Leno Show on January 7, 2013) that Mr. Trump prove he is not the “spawn of his mother having sex with an orangutan.”

Attached hereto is a copy of Mr. Trump’s birth certificate, demonstrating that he is the son of Fred Trump, not an orangutan. Please remit the $5 million to Mr. Trump immediately and he will ensure that the money be donated to the following five charities in equal amounts: Hurricane Sandy Victims, The Police Athletic League, The American Cancer Society, The March of Dimes, and The Dana-Farber Cancer Institute.

As previously reported here, to enforce a contract the party seeking to enforce the contract must show a meeting of the minds. Said another way, each party must enter the contract in earnest. Neither pretense, jest, nor parody may create the foundation of a contract. An offer made through a joke is not an offer at all and cannot be the basis for a contract. Take this precedence from Lewis v. Lowry, 295 F. 2d 197 (4th Cir. 1961):

If negotiators in a collective bargaining session should arrive at a complete agreement on the eve of April Fool’s Day and, out of a perverted sense of humor, should reduce to writing, sign, and distribute a pretensive agreement far from the real agreement they had reached, surely either party could show that the pretensive agreement was in fact pretensive, and the right of each to require that the real agreement be reduced to writing would be preserved.

Mr. Maher said he would donate $5 million to the charity of Trump’s choice if the Mr. Trump could prove he is not the “spawn of his mother having sex with an orangutan.” Mr. Maher was mocking Trump’s much-publicized announcement in October that he would donate $5 million to charity if Obama would release his college records.

While the earnestness of the offer is a matter for the jury, the case will be kicked out as soon as the judge gets the chance, but not before wasting judicial resources on the already strained California Superior Court system.

In other news, attorneys for Mr. Maher have begun a search for an orangutan named Fred C. Trump.

Via Yahoo!.

Read the complaint here.

 

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Using April Fools’ Day as a Legal Argument (Murder, Rape, and Contract Formation, Oh My!)

When it comes to April Fools’ Day and contract formation, consider the basics. A contract is a legally enforceable agreement. In order to have an enforceable contract, there must be offer and acceptance. An offer is a manifestation of intent of an agreement judged using the test of whether a reasonable person would believe that an offer had been made.  Therefore, if on April Fools’ Day an offer was made which a reasonable person would believe was a legitimate offer and that offer is accepted, a binding contract is created even if the offeror was merely joking. However, if both the offeror and the offeree knew the agreement was a joke, no contract would be formed because there was no mutual assent to the agreement. From Lucy v. Zehmer, 84 SE 2d 516 (1954):

We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention.

See also Keller v. Holderman, 11 Mich. 248 (Mich. 1863).

Action by Holderman against Keller upon a check for $300, drawn by Keller upon a banker at Niles, and not honored. The cause was tried without a jury, and the Circuit Judge found as facts, that the check was given for an old silver watch, worth about $15, which Keller took and kept till the day of trial, when he offered to return it to the plaintiff, who refused to receive it. The whole transaction was a frolic and banter–the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn. The defendant when he drew the check had no money in the banker’s hands, and had intended to insert a condition in the check that would prevent his being liable upon it; but as he had failed to do so, and had retained the watch, the judge held him liable, and judgment was rendered against him for the amount of the check.

When the court below found as a fact that “the whole transaction between the parties was a frolic and a banter, the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn,” the conclusion should have been that no contract was ever made by the parties, and the finding should have been that no cause of action existed upon the check to the plaintiff.

Note the digression on the topic regarding collective bargaining in Lewis v. Lowry, 295 F. 2d 197 (4th Cir. 1961).

If negotiators in a collective bargaining session should arrive at a complete agreement on the eve of April Fool’s Day and, out of a perverted sense of humor, should reduce to writing, sign, and distribute a pretensive agreement far from the real agreement they had reached, surely either party could show that the pretensive agreement was in fact pretensive, and the right of each to require that the real agreement be reduced to writing would be preserved.

Some other recent instances:

People v. McMullen, 92 AD 2d 1059 (1983).

Defendant testified at trial that the sexual acts described by complainant were consensual; that she ran naked from the house as part of an April Fool’s Day prank; and that she was injured when he pulled her back to the house so she would not wake his neighbors.

US v. Mohammad, 53 F. 3d 1426 (7th Cir. 1995).

Defense counsel’s other remarks, such as noting to the jury that the witness had testified before the grand jury on April Fool’s Day, no doubt contributed to the atmosphere in which the court handled the matter.

Winiarz v. State, 820 P. 2d 1317 (NV Sup. Ct. 1991).

On April Fool’s Day, 1984, Consuelo and Jacob Winiarz (to whom Consuelo was ostensibly married by virtue of an invalid marriage ceremony) decided to play a trick on a friend who was visiting them at their home. Consuelo and Jacob staged an argument, whereupon Consuelo pulled a gun on Jacob and fired at him, using blanks. Jacob pretended to die, spilling ketchup over himself to suggest that he was bleeding.

On Easter Day, 1984, a different group of friends was at Consuelo and Jacob’s home. Most of the people present, including Consuelo and Jacob, had been either smoking marijuana or drinking. Consuelo and Jacob appeared to argue and Consuelo shot at Jacob four times. When she allegedly first realized that there were real bullets in the gun and that Jacob had been wounded, Consuelo called an ambulance and went for help. [Jacob subsequently died and Consuelo was charged and convicted of his murder, twice.]