The Washington Post reported last week that James Carville--angered by alleged misinterpretations of the First Lady’s interview in Talk--was going to put classified ads in the paper promising $100,000 "to any reporter who can show me that Hillary Clinton linked the president's sexual misconduct with his childhood." Is a promise like that legally enforceable?
A promise is only legally binding if it is part of a contract. But a contract needn’t be a written document or even an oral agreement. If a reasonable person would conclude that a serious offer was being made, and fulfills the terms, it can be considered a binding contract. If you put up signs around the neighborhood saying, "$100 for the return of my cat," and I spend hours searching before finding and delivering your beloved tabby, the courts will make you pay up. If you have gained no benefit and I have incurred no cost, and it’s a non-business situation, the judge will probably say it was unreasonable for me to take you seriously. Carville would be harmed, not helped, by someone proving him wrong about Hillary--and that someone would enjoy vindication rather than enduring any cost. On the other hand, Carville benefits both commercially and politically from his stagy promise itself, so the court might hold him to it.
In a recent case, Judge Kimba Wood ruled that Pepsi did not have to make good on an advertisement suggesting that consumers could redeem 700,000 "Pepsi Points" for a $23 million Harrier fighter jet. No reasonable person would believe it, she said. In 1996 the chairman of the Republican National Committee, Haley Barbour, promised $1 million to any American who proved that a GOP budget proposal did not increase Medicare spending by more than 50 percent. Twenty Americans filed breach of contract suits. A dozen are still litigating. The RNC has already settled with one claimant for an undisclosed amount. Last year talking-head lawyer Joseph DiGenova got NBC to fork up $10,000 after Geraldo Rivera broadcasted an offer of that amount to anyone who could cite a case where a person was convicted of perjury for lying about sex.
But Carville’s Post quote was not an offer--it was a statement of intent to make an offer. (Since he said he intended to publish an offer, no reasonable person could believe he intended his statement itself to be a binding offer.) And on the Today show the next morning, he announced that he had decided not to publish the offer after all. He also said that the ad he wasn’t running would have promised $100,000 to the Louisiana State University alumni fund, not to the journalist who proved him wrong. That means even if he had made a legally binding promise, it would be hard for anyone but his own alma mater to sue him if he failed to make good.
Explainer plans to offer $100 to any reporter who can show her that James Carville made a legally enforceable offer.
(As for the question raised in Carville’s non-offer, see this literary analysis by Mickey Kaus.)
Explainer thanks Yale contracts professor Ian Ayres for his invaluable assistance.