Question

Instructions: Pretend that you are an attorney representing Leonard in the case. Answer the following questions and present arguments for why Leonard should win. Remember: if there is an offer, acceptance, and consideration, then a legally enforceable contract was formed. As a representative of Leonard, you will want to argue that all these things were present.

1. Why should the commercial constitute an offer? Argue that it did.
2. Did Leonard accept the offer? Explain how he accepted the offer.
3. Did both Leonard and Pepsi give consideration? If yes, what consideration did Leonard give? What consideration did Pepsi give?
4. Does Pepsi have any viable defenses (e.g., fraud, duress, violation of public policy) against the creation of a contract? What are arguments against these defenses? Remember, as Leonard's representative you don't want Pepsi to present any viable defenses.
5. After consulting with a person from the Defendant's side, who do you think should win the case?

Defendant Questionnaire

Instructions: Pretend that you are an attorney representing Pepsi in the case. Answer the following questions and present arguments for why Pepsi should win. Remember: if there is an offer, acceptance, and consideration, then a legally enforceable contract was formed. As a representative of Pepsi, you will want to argue that all these things were present. Furthermore, you will want to present affirmative defenses.

1. Why did the commercial not constitute an offer? Argue that it wasn't an offer.
2. Why did Leonard's submission of the check, 15 Pepsi points, and the Order Form not constitute an acceptance? Argue that it wasn't an acceptance.
3. Was there consideration given by Pepsi and Leonard? If yes, what was it? Why shouldn't it be consideration?
4. What affirmative defenses (e.g., duress, fraud, public policy) will you present?
5. After consulting with someone from the plaintiff's side, which side do you think should win the case?

Answer 1

Arguments in favor of Leonard:

• For an offer to be valid what is necessary is that it starts with one party making an offer to the other. Offer’s can also be called “Proposals”. An offer made must be with the intention to become legally binding once it is accepted. In our case as well the commercial very well expressed the willingness to make an offer to the customers. The commercial constitutes an offer as the same was aired keeping in my mind that somehow somebody will accept the offer and therefore, it will become legally binding on both the parties. The intention here was not to just air a commercial but was to lure as much customers as they can through this commercial.
• Leonard accepted the offer and showed his acceptance by filing up the order form which was meant to be filled for the “Harrier Jet” as per the commercial. The order form was to claim what was offered in the Pepsi commercial and by filing and submitting the form, Leonard expressly communicated the acceptance of the offer made by the Pepsi.
• There was implied acceptance of the consideration on the part of Pepsi, as the commercial featured a Harrier Jet and proclaimed that this jet costs 7,000,000 Pepsi points and the commercial also told as to how to obtain these Pepsi points to have the Harrier Jet. The back of the order form stated that a person can buy Pepsi points for ten cents a point. And keeping this in view, Leonard filled out the order form and asked for the Harrier Jet from the defendant company and also with the form sent 15 Pepsi points and approximately $7,000,000.

Hence, both the parties agreed on the consideration point. Pepsi offered Harrier Jet in consideration of the offer aired through the commercial. On the other hand, Leonard after sending the order form and the requisite Pepsi points completed his part of consideration.

• Pepsi does not have any viable defense as from the facts itself, it is very clear that Pepsi intended to offer its customers the Harrier Jet in consideration of the offer and the same was duly accepted with all the terms and conditions as laid by the Pepsi and was in consonance to the commercial and not out of the box was asked by the Plaintiff from the Defendant. The plaintiff asked what was offered in the commercial against the consideration offered by the Defendant, which he accepted and agreed to pay after accepting the offer.

Hence, there cannot be any viable defences from the Defendant’s side.

• After getting to know the other side, that is., the Defendant’s side, what we got to know is that the present case is based on assumptions and misunderstanding on the part of Plaintiff. That the commercial was not about the Harrier Jet which Leonard thought of and assumed of, instead it was for the products stated in the catalogue which were up against those points. Harrier Jet was just a way to make the commercial appealing and more interesting and nothing else. It was nowhere said or mentioned that the Harrier Jet was up for the consideration. The Plaintiff’s side was all in all based on one assumption and misunderstanding that the commercial offered the Harrier Jet as a part of the commercial and promotion strategy, which in fact and reality is wrong.

Hence in my view, the Defendant’s side should win the case, as they have every point which clears that the commercial was not about Harrier Jet and only about the catalogue, which makes it clear that the Plaintiff mistook the concept of the commercial. And when something is not even offered how can one claim it or express its acceptance in that regard.

Arguments in favour of Pepsi:

• The commercial did not constitute an offer as for a valid offer the thing offered must be specifically stated. In our case, the commercial was not about the Harrier Jet and the same was never a part of the promotion. It was just to make the commercial a bit catchy to the eyes of customer. Also, the commercial was all about the things or products mentioned in the catalogue and Harrier Jet was nowhere in the catalogue which makes it clear that it was never offered as a part of the promotion.

Moreover, the kind of commercial that was aired was not such that a reasonable person would believe that there was an offer of the Harrier Jet.

• The question regarding the submission of check, 15 Pepsi points and order form does not constitute an acceptance, as there wasn’t any offer to give Harrier Jet in consideration of all these. Harrier Jet was just a means of promotion and to make the commercial more attractive so that more and more people watch it, which will led to more and more customers luring towards the offer for the products there in the catalogue.

Hence, acceptance without any offer means nothing and does not constitute any obligation on the other party.

• There was no consideration given on part of the Pepsi, Leonard only after assuming that the commercial intended to give Harrier Jet as a part of their consideration, sent the Order form along with the requisite Pepsi points. But anyhow the same could’nt be accepted as consideration as at the very first place there was no such offer and even the Harrier Jet was not open for giving for consideration. Without valid offer consideration means nothing.
• Firstly, the commercial referred to the catalogue, where the whole offer was and the whole commercial was even about that catalogue and nothing outside the catalogue. Secondly, the keeping in view what a reasonable man could think of the commercial, it was never intended to offer the Jet as consideration and this was pretty clear and obvious for a reasonable person of sound mind. And no such person would even take such commercials seriously.

Hence, with all these facts and circumstance no such offer was ever made and therefore, there cannot be any acceptance.

And in the light of the same, the present case of the Plaintiff is based on nothing but just an assumption that the Harrier Jet was up for consideration. And when the same was not in consideration then how can it be claimed.

• After having discussed, we are of firm opinion that the Defendant’s side is strong and is more reasonable and worthy of credit. The Plaintiff however, misunderstood the commercial, which as per us should not be the case, as the Harrier Jet can never be expected to be given as part of consideration for any offer, neither it can be an offer.

Our side is clear that we never intended anything else to be offered in the commercial other than the things there in the catalogue. Also, the whole commercial revolved around the products in the catalogue and nothing else. Hence, mere misconception or misunderstanding in someone’s mind which is not expected otherwise cannot form a base for any litigation and hence is liable to be dismissed.

NOTE- If you like my answer please vote/thumbs up, this gives me motivation.