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A Good Joke Cannot Create a Contract

If you’re a Bill Maher fan you know exactly what this post is about.  If you’re not, let me fill you in.  A while back Bill Maher was on a late night talk show.  He told the host that if Donald Trump could produce his birth certificate to prove that his parents were not orangutans then Maher would donate $5 million to the charity of Bill Maher’s choice.   A few weeks ago Trump produced his birth certificate and surprisingly proved that he was not the direct decedent of orangutans.  So what did he do next?  He had his lawyer send Maher a letter demanding that he donate $5 million to charity.  When Maher refused, Trump sued him for, get this, breach of contract.

Now, I’m a big Bill Maher fan.  Not because of his politics but because he is one of the few talk show hosts to call it as it is.  On the show following Trump’s lawsuit Mahler said (and I’m paraphrasing here) “There are two things Donald Trump doesn’t get, the first is a joke and the second is a contract”.  Maher went on to explain why his proposal was a joke, but he never explained why the joke was not a contract.  So let me pick up where Bill left off.

For a contract to exist there must be some essential terms and a meeting of the minds as to these essential terms.  Essential terms are usually presented in the form of an offer and typically include the price and product (i.e. widgets) or performance (produce a birth certificate and I’ll give you $5 million) that is sought.    Now the catch to all this is that there must be a meeting of the minds as to the essential terms of the contract  For this meeting of the minds to exist the terms presented in the offer must be such that a reasonable person being presented with the offer would believe it to be a valid offer.  If a reasonable person would not view the offer as valid because the terms were outrageous (i.e. $5 million to produce a birth certificate), then there can be no acceptance, or meeting of the minds as to the terms of the contract.  Confused?  If you are don’t worry about it.  I couldn’t figure this out until I took the bar exam.

Keeping the above in mind let’s turn back to the Bill Maher situation.  Now Bill Maher did communicate essential terms.  He said “I will donate $5 million if you produce your birth certificate to prove your parents were not orangutans.”  However, would a reasonable person being presented with this offer believe it to be a valid offer?  Do I even need to answer that?  NO!  Since no reasonable person would believe that someone would actually pay for this performance there can be no meeting of the minds or mutual and assent.  Therefore, there is no contract.

Now I’m quite sure Mr. Trump was presented with a similar analysis by his lawyer, but he of course ignored it and filed suit probably for publicity.  My thoughts on this tactical decision are the exact same as Bill Maher’s (and again I’m paraphrasing) “Trump doesn’t care, he sees the legal systems as his playground where he can do whatever he wants.”  Trump, do me and the rest of the people who need the legal system a favor, do something else that will bring you the attention that you so desperately crave.

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