Cheers is a great sitcom that stands the test of time. It’s still funny now, thirty years after it began (I’ve verified that by watching the first season again on Netflix this past week). Coach, Diane, Norm, Carla, Cliff (as a legal geek I was always a fan of him and his trivia), Woody, Lilith, Nick…every character was great.  And that theme song is still fantastic…

In honor of its thirtieth anniversary (and the great oral history done by GQ), I had to go back and watch an episode with legal significance. During the third season, Kramer shows up (pre-Seinfeld fame and onstage infamy), going by the name Eddie Gordon. Eddie is an old drinking buddy of Sam’s who had been out drinking with Sam almost exactly a year ago. While drinking tequila (he always wants Jacqueline Bisset when drinking tequila), Sam made a bet with Eddie that he’d be able to marry Jacqueline within a year or he’d give the bar to Eddie. Sam even wrote the bet down, signing in front of witnesses.

Tom, a bar patron (and a wannabe lawyer who could never pass the bar), said the bet couldn’t be enforced because Sam was drunk when he signed it and it was a wager, not a contract. Despite the legal advice from a wannabe lawyer (a no-no), Sam didn’t want to go to court and testify that he had been drinking again. So Carla came up with another plan: find somebody else named Jacqueline Bisset and marry her instead. Carla and Tom were both wrong on the law, as often happens on TV, but it still made for a great story.

So what can Tom and other wannabe lawyers learn from this episode?

Bar Bet

(1) Can a bar bet be enforced? Courts will not enforce transactions involving prohibited gambling games (because they conflict with the welfare and morals of society). See Schur v. Johnson, 38 P.2d 844 (Cal. App. 3 Dist. 1934). The Cheers bet, however, did not involve a illegal game of poker or other prohibited gambling activity so presumably could be enforced if it was otherwise a valid contract. (Speaking of bar bets, I’d never before heard the rumor that one of my favorite authors, Robert Heinlein, had a role in the beginning of Scientology).  The problem with this wager, however, is that there is no mutual consideration (Sam loses the bar if he doesn’t marry JB, but what consideration does Eddie bring to the table?).  Without consideration, there’s no contract. (It would be difficult to argue that the bar bet was an unilateral contract because Sam had to make both the promise [he’d give up the bar] and do the required act [marry Jacqueline Bisset], which violates the principles of unilateral contracts.)


(2) Can you sign a contract when you’re drunk? The law requires that a party to a contract have the mental capacity to enter into the agreement. As Tom pointed out, the general rule is that intoxicated people don’t have the capacity to sign a contract. See RESTATEMENT (SECOND) OF THE LAW OF CONTRACTSS § 12(2) (1981) (limiting lack of capacity to those who are under guardianship, minors, mentally ill, or intoxicated). However, intoxication does not always mean that a party can’t enter into an agreement. Instead, the court needs to determine the effect of the intoxication upon the party to the contract, with intoxication only being a defense if it’s so severe that the party couldn’t understand the terms and conditions of the agreement when the agreement was signed. See D.M. v. K.M., 2006 WL 3742801 (N.Y.Sup. 2006).


(3) Does a contract to buy a bar need to be in writing? Eddie was smart – he wrote down the bet with Sam and had it signed by Sam and other witnesses. While many contracts can be oral, contracts to buy real property (such as a bar) must be in writing to comply with the statute of frauds. See Del Pozo v. Impressive Homes, Inc., 95 A.D.3d 1268, 1270-1271 (N.Y.A.D. 2 Dept. 2012).

Jacqueline Bisset

(4) Could Sam marry just any Jacqueline Bisset or did he need to marry the actress? The bet said Sam had to marry Jacqueline Bisset, but what did that mean? When a contract includes an ambiguous provision (which means that the term could have more than one meaning), the court will look to the parties’ intent to determine what the provision should mean. See Banco Esprito Santo, S.A. v. Concessionria Do Rodoanel Oeste S.A., 2012 WL 4069808 (N.Y.A.D. 1 Dept.,2012). In this case, it’s clear that both parties intended the term to mean Jacqueline Bisset the actress, so Carla’s suggestion would not have held up in court.  Thank goodness it was enough to outsmart Eddie!

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Jessica has been litigating business and IP disputes for the past decade. During that time, she’s dealt with clients, lawyers, and judges who have varying degrees of appreciation for the challenges of managing discovery in an electronic age. Until the fall of 2011, she was an attorney at a large, Texas-based law firm, where she represented clients in state and federal court nationwide. That fall, she made a long-desired move back to the Midwest and is now a partner at Hansen Reynolds Dickinson Crueger LLC, a litigation boutique based in Milwaukee, Wisconsin, where she continues to litigate while also consulting with business and law firms on e-discovery issues (before, during, and after litigation arises).