It was a joke!

Donald Trump is back in the news again…this time for suing comedian Bill Maher over an offer Maher made on the Tonight Show a month ago.  Talking to host Jay Leno, Bill Maher said that he would donate $5 million to the charities of Trump’s choice if Trump could prove that he wasn’t “the spawn of his mother having sex with an orangutan.”  Trump provided Maher with his birth certificate, but Maher refused to pay up, so Trump filed a breach of contract suit against Maher.

GavelI’ve written about unilateral contracts before.  In such a contract, the offeror (Bill Maher)  makes a promise (donate $5 million) if the offeree (Trump) performs the requisite terms (proving his father is a homo sapien).  Trump’s claiming that he performed and, therefore, Maher needs to pay up.  But Maher is refusing, so what’s his defense?

It’s a joke!  Maher isn’t the first defendant in a breach of contract suit to claim that a contract was never intended – that the entire deal was based on a joke.  And, indeed, the law generally recongizes the idea that even if the contract looks legit it won’t be enforced if it’s a joke.  See Restatement of Contracts, 2d, § 214(d)-(e) comment c.  Of course, if you could easily avoid your contractual obligations by claiming you were joking, everyone would do it.  See, e.g., Luebbert v. Simmons, 98 S.W.3d 72, 78 (Mo.App. W.D. 2003) (defendant was unable to avoid contract by claiming she was drunk and/or joking).

Studio Audience

So how does Maher prove to the court that he was joking?  The court will look to Maher’s conduct and words.  If a reasonable person would believe that Maher intended a real agreement from his actions, then Maher can’t avoid the creation of a contract.  Id.  If, on the other hand, it was obvious that it was a joke, than the court will find that no contract was formed.  See Leonard v. Pepsico, Inc., 88 F.Supp.2d 116, 127-128 (S.D.N.Y. 1999).  In this case, given that this was a comedian performing on a late night talk show before a laughing studio audience – and given the parallels to Trump’s own offer to President Obama – it will be difficult for Trump to show that any reasonable person believed a contract had been formed.  But he’s in the news again, so Trump’s already won.


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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).