Thanks Terrance for this email.  I thoroughly enjoyed it and actually used a version of this situation as a essay question on my graduate final exam.  Some really interesting analysis, most students enjoyed it, fun to grade, etc.  It is always nice to have a recent, real-life question for the students to analyze.  BUT one of my students missed an important point of the question in a very big way.

First let me say that I offered to explain baseball to anyone who needed it.  I tried to keep the baseball angle minimal and focus instead on the legal aspects of it.  The question was straight and to the point.  A couple of students who were not U.S. natives took me up on a quick verbal tutorial and had no problem answering.  For some context regarding the answer that follows, the student who wrote this answer is a U.S.-born person beyond the age of the usual MBA student.  Here is a shortened version of a portion of her answer, without all the (sic)s.


In order for genuine assent to take place, there must be a mutual meeting of the minds.  I can see this argument going two directions.
a.  First, since the base "thief" was one of the PLAYERS, he may not have actually believed he was stealing a base.  He may have just intended to remove the base and place it in the locker room, not constituting stealing.  He may have interpreted the requirement of "stealing" to mean "removing", since a reasonable person would not believe that Taco Bell would actually want someone to "steal" something on their behalf.  If that was the case, and the mistake was purely Taco Bell's mistake in judgement for using the word "steal", the courts may not grant a recission of the contract based on this element of exception.
b.  Conversely, a unilateral mistake could have taken place when Taco Bell advertised with the ambiguous language in the advertisement by using the word "steal".  I have difficulty believing that they meant for someone to commit a crime by stealing the base (I don't believe it was intential; simply an error in judgment), particularly in the World Series.  The offeree should have known as a reasonable person that an offer to pay someone for committing a crime (even as petty as stealing a base) would be illegal and advertising to perform it was surely an error in judgment.

I believe that both parties understood the content of the contract to interpret the word "steal" to mean "remove."  I believe that the genuine assent element of a valid contract was completed.



Maybe I should have explained baseball to everyone...

________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] On Behalf Of Terence Lau [[log in to unmask]]
Sent: Tuesday, October 30, 2007 12:49 PM
To: [log in to unmask]
Subject: Free taco = contract?


A student asked me today if Taco Bell's free taco giveaway from 2 pm to 5 pm today is a contract or a gift (see http://mlb.mlb.com/mlb/fan_forum/tacobell/).  My initial read is that this is a gift, since consumers have provided no consideration for the free taco (the free tacos are conditioned on a base being stolen in the World Series).  It's also not a contract because promotional materials such as advertisements are not offers to contract.  On the other hand, driving to a taco bell and waiting in line may be consideration, and is certainly legal detriment.  Additionally, in looking at the terms and conditions of the promotion, I dare say that Taco Bell may have created a contract, because the T&C include language such as "by participating, consumers agree..." and including waiver of liability, which is adequate consideration to support a contract.  Does anyone else have a different read on this?  My take is that Taco Bell is offering a unilateral contract and must perform by giving away free tacos, subject to the limitations it has imposed in its T&C (limit one per customer, management can refuse, etc.)

_____
Terence Lau
Assistant Professor, Business Law
Management and Marketing Department
University of Dayton
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