November 19, 2007
Too Swift on the Offer Boat
November 19, 2007 09:21 PM
This would make a fun contracts question: if T. Boone Pickens initially offered $1 million to anyone who could disprove any one of the claims made by the Swift Boat Veterans for Truth, and John Kerry accepted that offer, can Pickens now require additional consideration from Kerry in the form of "1) the journal [he] maintained during [his] service in Vietnam. 2) [His] military record, specifically [his] service records for the years 1971-1978, and copies of all movies and tapes made during [his] service"?
Interesting question. One could argue that Pickens's offer was concrete enough to create a unilateral contract if someone were to perform.
Compare with the typical example of a unilateral contract offer: The announcement of a lost dog reward. Performance on the part of the other party will create the contract without any further action or communication with the offeror.
In the Kerry case, some more information might be required: Was Kerry simply announcing his intention to perform, but had not yet done so? In that case, he'd be able to avoid any losses, and have no claim for damages.
Or, if Kerry has already performed - researched and compiled information - except for the act of communicating this information to Pickens, then he might be able to recover damages under a detrimental reliance or expectation theory.
Good point regarding the potential for unilateral contract being created upon performance, but I think Kerry took the acceptance option, thus creating a bilateral contract (one that includes the consideration element necessary under our common law). His letter to Pickens does not claim the prize by stating that he already has disproven a Swift Boat allegation, but instead says "I am prepared to... I look forward to..." This is clearly the language of acceptance -- however, it's also not the language of negotiation.
I'm not great with contract law, so I'm uncertain as to whether Pickens can add to the requirements of his offer after it has been accepted on its initial terms. The law student who could answer that would get the extra points after giving the basic passing answer of "$1 million is greater than the $500 of the generally accepted UCC Statute of Frauds and even the $5000 of the revised UCC. Thus the failure to have a written, signed contract would disable Kerry from enforcing the contract at this point if disproof is treated as a good. If the acceptance were treated as sale of a service, it would not be covered by the UCC."