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Hyperbole vs. Binding Promises: When Does One End and the Other Begin?

If you have a business, being successful often entails marketing yourself to the public. And as we all know, marketing sometimes involves bold statements and perhaps outlandish offers to get the public’s attention. But where does the line between simple advertising statements end and creating an actual enforceable contract begin?

Promises vs. Puffery

We seem to inherently know what kind of statements create real contracts. For example, an offer that a business will match its competitors’ prices is a valid and bonding offer that a business must abide by. But saying “We’ll give you a million dollars if our pizza isn’t the best in the world,” is not an actual contract that can be complied with or which binds the person making the offer.

In the legal world, offers or statements that are meant simply to boast, brag, or advertise are often called “puffery.” Usually, puffery contains statements that no reasonable person would think is an actual offer to enter into a contract.

Recent Case Tests Puffery

A recent case in our federal circuit is an interesting study in the boundaries of what is puffery and what can create an actual legal agreement.

The dispute actually arose from a murder trial. The defense attorney contended his client couldn’t have committed a murder in Florida, because there was videotape of him at a hotel in Georgia 28 minutes after the murders occurred. The state contended that the defendant could have committed the murder and still made it to the hotel in the 28-minute gap in time.

The defense attorney was so convinced of the impossibility of his client committing the murder and still making it to the Atlanta hotel on time that he stated on TV:

“I challenge anybody to show me, and guess what? Did they bring in any evidence to say that somebody made that route, did so? State’s burden of proof. If they can do it, I’ll challenge ‘em. I’ll pay them a million dollars if they can do it.”

Sure enough, a law student saw this comment and took it as an actual open-ended offer to anybody who could demonstrate that it was possible to go from Florida to the Georgia hotel in the 28 minutes. So, he actually did just that, tracing the defendant’s steps exactly from Bartow, Florida to the hotel in Georgia. He did it within 28 minutes, and then demanded payment of the money pursuant to the attorney’s “promise.” The attorney refused payment.

The 11th Judicial Circuit understandably held that no money was due to the student. The court found that no reasonable person could interpret the attorney’s statements as an actual offer. The Court noted the offer of a million dollars (which it noted was “the common choice of movie villains and schoolyard wagerers alike”) seemed like hyperbole.

The circumstances also made it clear there was no actual intent to contract—the attorney was simply making statements to defend his client—not putting an actual offer in the open for acceptance.

It seems silly here to think anybody would argue there was an enforceable contract. But the case is a lesson for business owners who make offers or promises in advertising.

Business owners should be wary of the wording and context of what they say in advertising, lest they want to end up having to fulfill the promise of what was just an advertising ploy.

If you have a business, make sure you’re not doing or saying anything that could create problems later on. Contact Tampa business attorney David Toback to discuss your needs and make sure everything is handled correctly.

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