Friday, August 14, 2009

Contractual intent is shown by the objective meaning of the promisor's expression

Restatement (2d) of Contracts §2. PROMISE; PROMISOR; PROMISEE...
(1) A promise is a manifestation of intention to act or refrain from acting . . . so made as to justify a promisee in understanding that a commitment has been made.
(2) The person manifesting the intention is the promisor.
(3) The person to whom the manifestation is addressed is the promisee....
Comment b. Manifestation of intention.... The phrase "manifestation of intention" adopts an external or objective standard for interpreting conduct; it means the external expression of intention as distinguished from undisclosed intention. A promisor manifests an intention if he believes or has reason to believe that the promisee will infer that intention from his words or conduct.
Back in the 1990s, Pepsi ran the following television advertisement:

In Leonard v. Pepsico, Inc., 88 F. Supp. 2d 116 (S.D.N.Y. 1999), aff ’d, 210 F.3d 88 (2d Cir. 2000), the plaintiff asserted the right to buy a Harrier jet plane for 15 Pepsi points and $700,000. The Pepsi points, as described in defendant’s catalog, were also available for purchase at ten cents apiece; apparently, plaintiff had actually raised $700,000 ‘‘through acquaintances’’which he asserted to be the equivalent of 7 million points.

Would the plaintiff have been entitled to the value of the t-shirt, the leather jacket, or the sunglasses? What about the Harrier Jet? Without referring to the opinion (discussed on page 33 of you Casebook and set forth in full at the link above), how would you justify your answers?


  1. I cannot decide if catalogues establish a contract. My gut says yes because the Pepsi catalogue offers various prizes such as the t-shirt and leather jacket, and upon sending in the Pepsi points one is entitled to the items ordered. However, a catalogue could have disclaimer language stating "limited quantities" so that participants sending in points cannot sue for breach of contract when the t-shirts or leather jackets become out of stock. Would the disclaimer language then make the catalogue like an advertisement rather than a contract? I keep wondering if I am entering into a contract when I order clothes from catalogues...

    Jessica Pospiech

    1. Hi

      Are you on the path to ultimate life success?

      Why leave it to chance? I highly recommend that you take this 60 second quiz and then check out your customised report that comes from it.

      ==> 60 Second Life Success Quiz (and personalised report)

      I was shocked at how accurate the results were for me when I tried this quiz myself and I’m sure you’ll be impressed too.

      Your report reveals things you need to know, customised for you based on your responses, so that you can manifest for yourself a life of wealth, love, health, success and more!

      ==> Go here for the 60 second life success quiz (and personalised report)

      Enjoy and go well!

      Kind regards,


  2. Yes the plaintiff should be entitled to purchase any item that he has sufficient points or money for. The Pepsi catalogue states that points may be purchased at 10 cents a piece; therefore, the plaintiff should be allowed to purchase the necessary amount of points for the jet. This may not be the case if there is a rule on how many "purchased" points can be used for an item as opposed to "earned" points.

    R. Shefferly

  3. It is preposterous to think that he is entitled to the Harrier Jet for several reasons:
    1) if you watch the commercial, you can see that it is very comic-able. you cant take a commercial seriously when a TEENAGE kid arrives to school in a Harrier Jet.

    2) Any "reasonable" person would also assume that PepsiCo. would not have access to a military fighter jet that costs hundreds of millions of dollars to build and only sell it for the amount that they had in their TV ad.

    3) Under all circumstances, a Harrier Jet is not flown by anyone that doesn't have the necessary training and credentials. So, i don't have any idea what someone would do with a fighter jet.

    I'll be honest, i read the case last week before i saw the blog. There was a clause about using "earned" points, and the plaintiff did satisfy that requirement.

    Regardless, it is still a ludicrous idea to think that you could win, let alone own, or even buy a United States military weapon.

    Brandon Shamoun

  4. I believe that the plaintiff would (or should) be entitled to the jet plane. It may sound crazy to some people to buy a jet plane, but others would find it to be an "amazing deal". We all have encountered "amazing deals". For instance, it sounds absurd to me that someone would sell a house for $1 (true story), but to someone else it may sound like an "amazing deal". Can you imagine finding out that a house is being sold for only one dollar, and then when you go to the seller and give them a dollar they say they will not sell it to you for a dollar because no "reasonable" person would actually believe that a house could be sold for only a dollar. If that were the case then how do we hold people accountable for their commitments?

  5. Candace Yono8/26/09, 12:20 AM

    • The Pepsi commercial implies that the young gentleman when wearing the shades, the leather jacket and the t-shirt obviously fulfilled his duty of collecting Pepsi points and in return he received those products. Pepsi depicted this situation so that it seemed as if the promisor [Pepsi] was aware of the commitment that they were making and they were prepared to go through with their promise. So when someone went about obtaining 7,OOO,OOO Pepsi points, they were under the impression that they would be able to get the jet. The key point in this is that Pepsi did not believe that a "reasonable person" would go so far as to obtain 7,OOO,OOO Pepsi points and want the jet. Based off the commercial and depending on what the catalog stated… I would have believed if I had fulfilled my duty of providing Pepsi with the points then I deserve my Jet.

  6. In my opinion, the plaintiff is not entitled to the Harrier jet. It is clear that the jet was used in the commercial for the sole purpose to gain viewer's attention and more specifically to young viewers. Additionally, the defendant did not assume it would be possible for anyone to attain $7,000,000 points. However, as the commerical stated, one could purchase the products being advertised in the catalog. Furthermore, the catalog did not list Harrier jet as a product being sold therefore the defendant had no intention of selling a Harrier jet. The plaintiff made an assumption that since it was advertised on tv that it must be for sale which is an error on the plaintiff's part.
    I think the plaintiff is entitled to the t-shirt, sunglasses and the leather jacket because he has enough points to get all three products. However, the plaintiff did not order any of those products. I think the damages awarded to the plaintiff should be: the $700,000.

    Sonya S.

  7. If we could assume that everything depicted in commercials can be used as basis for a contractual lawsuit, I could only imagine how that would change how commercials or television as a whole, is being made and distributed.

    I am realizing that cases are not always decided by the merits of the case, but often the impact the decision will have in the future.

  8. I really appreciate the kind of topics you post here. Thanks for sharing us a great information that is actually helpful. Good day!
    law of attraction methods