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"it's obvious they would not hand a fighter jet to a teenager for them to fly to school" You seem to be undermining your own argument here. I can think of nume

"it's obvious they would not hand a fighter jet to a teenager for them to fly to school" You seem to be undermining your own argument here. I can think of numerous adverts where upon revealing a prize the winner is magically transported to Disneyland or wherever. Do those advertisers not have to give out the prize because the winner obviously isnt going to be transported instantly to Disneyland?

vidarh 7y ago
Of course that would depend on jurisdiction, but with the caveat of same jurisdiction as Pepsico was sued under, the ad in itself would not create a binding contract there either, no, unless it also contains a lot of other elements absent from the Pepsi ad. But it is still not equivalent - the court judgement does not argue that the mere presence of exaggeration implies that nothing in it could be an offer. What it sets out is: - That the presentation of the jet prize is puffery / exaggerated and meant in jest. If you remove the ridiculous, over the top part from that, there is nothing left but the items actually on offer. In the case of an ad presenting a trip to Disneyland and illustrating it with "magical transport", I'm quite confident the courts would consider the potential offer to be the trip, not the "magical transport". - The court further held that even if it wasn't puffery, an ad does not automatically create a binding offer; in fact it makes the claim that even an order form (which did not exist for the jet) does not automatically create a binding offer, unless it unambiguously sets out limitations that makes it clear that there's nothing negotiable, and that usually includes making clear the specific terms, such as limitations of supply etc. This would likely be the case for an offer of a trip to Disneyland too, magic or no magic, if it was presented as in the Pepsi ad, with no terms and limitations stated and with a reference to a catalog that did set out terms and and order form, and that in the Pepsi case did not include a jet. I added the URL to the verdict elsewhere.
- benj111 7y ago
  "That the presentation of the jet prize is puffery / exaggerated and meant in jest. If you remove the ridiculous, over the top part from that, there is nothing left but the items actually on offer. In the case of an ad presenting a trip to Disneyland and illustrating it with "magical transport", I'm quite confident the courts would consider the potential offer to be the trip, not the "magical transport"." That's my point, they aren't (/shouldn't) going to be considering the teenager going to school either.
  - vidarh 7y ago
    > That's my point, they aren't (/shouldn't) going to be considering the teenager going to school either. In the Disneyland example, what is being "sold" is the Disneyland trip, and the magical transport is puffery. In the Pepsi example, what is being sold is t-shirts and other bits and pieces, and the jet is puffery. The "story line" of showing someone flying it to school is part of the courts argument for why presenting the jet at all is puffery; the primary value of offering a jet up as something cool would be to be able to use it - if the intent was to offer something high value that was not exaggerated, then actually offering the cash value would have been less likely to appear exaggerated, but then that also makes the offer clearly too good to be true: You'd be able to pay $700k to get $23m, and turn around and do it again (there was no limitations in the ad). The exaggeration in both cases is obvious enough that Pepsi faced no other attempts to obtain the jet, and to my knowledge nobody has tried to go to court over lack of magical transport to Disneyland either. There is no requirement that nobody will take it seriously for a court to consider it puffery, though there is no evidence that anyone, including the plaintiff, took it seriously. In both cases, remove the exaggeration, and you're left with something actually on offer: the Disneyland trip, or the items actually in the Pepsi Stuff catalog. But in any case: it's irrelevant. Just presenting them in an ad does not create a binding contract to provide one even if you don't believe it was exaggerated, because as the court made clear, an ad only creates a binding contract if it presents a clear unambiguous offer - the absence of any kind of limitations to the offer makes it clear it is not a binding contract. But the absence of those elements also makes it clearer that the "offer" was made in jest - there were no elements in that ad that suggested Pepsi intended to make a binding offer, and nothing to accidentally have caused them to make one.
    - benj111 7y ago
      "In the Disneyland example, what is being "sold" is the Disneyland trip" In my example the Disneyland trip was a prize. We agree that the magical transportation is puffery, as we agree that the child travelling to school in a jet is puffery. But just as it doesn't automatically follow that just because the magical transportation is puffery, so too is the Disneyland prize. It doesn't automatically follow that the jet plane itself is puffery, just because the teenager travelling to school in one is puffery. $700k is a lot of money, that in itself is going to limit how many people are going to try to buy anything. And lets say they did believe they were going to get 'a' Harrier maybe they thought it was going to be a second hand Mk1 Harrier that isn't worth nearly so much, and even then how do you go about valuing and selling something like that. A nation state probably wouldn't be interested, so a private collector, but how many of those are there? Would they want to buy from a Pepsi swilling teenager? How quickly? How much storage and transport/fuel fees are you going to incur? All of that is itself enough risk to justify only $700k on a potential $23m. You're right that its a contract issue, even if they had advertised an actual Harrier for $700k they still wouldn't have had to sell it ( under UK contract law anyway, I understand it to be the same in the US)

vidarh 7y ago

Of course that would depend on jurisdiction, but with the caveat of same jurisdiction as Pepsico was sued under, the ad in itself would not create a binding contract there either, no, unless it also contains a lot of other elements absent from the Pepsi ad. But it is still not equivalent - the court judgement does not argue that the mere presence of exaggeration implies that nothing in it could be an offer. What it sets out is: - That the presentation of the jet prize is puffery / exaggerated and meant in jest. If you remove the ridiculous, over the top part from that, there is nothing left but the items actually on offer. In the case of an ad presenting a trip to Disneyland and illustrating it with "magical transport", I'm quite confident the courts would consider the potential offer to be the trip, not the "magical transport". - The court further held that even if it wasn't puffery, an ad does not automatically create a binding offer; in fact it makes the claim that even an order form (which did not exist for the jet) does not automatically create a binding offer, unless it unambiguously sets out limitations that makes it clear that there's nothing negotiable, and that usually includes making clear the specific terms, such as limitations of supply etc. This would likely be the case for an offer of a trip to Disneyland too, magic or no magic, if it was presented as in the Pepsi ad, with no terms and limitations stated and with a reference to a catalog that did set out terms and and order form, and that in the Pepsi case did not include a jet. I added the URL to the verdict elsewhere.

benj111 7y ago
"That the presentation of the jet prize is puffery / exaggerated and meant in jest. If you remove the ridiculous, over the top part from that, there is nothing left but the items actually on offer. In the case of an ad presenting a trip to Disneyland and illustrating it with "magical transport", I'm quite confident the courts would consider the potential offer to be the trip, not the "magical transport"." That's my point, they aren't (/shouldn't) going to be considering the teenager going to school either.
- vidarh 7y ago
  > That's my point, they aren't (/shouldn't) going to be considering the teenager going to school either. In the Disneyland example, what is being "sold" is the Disneyland trip, and the magical transport is puffery. In the Pepsi example, what is being sold is t-shirts and other bits and pieces, and the jet is puffery. The "story line" of showing someone flying it to school is part of the courts argument for why presenting the jet at all is puffery; the primary value of offering a jet up as something cool would be to be able to use it - if the intent was to offer something high value that was not exaggerated, then actually offering the cash value would have been less likely to appear exaggerated, but then that also makes the offer clearly too good to be true: You'd be able to pay $700k to get $23m, and turn around and do it again (there was no limitations in the ad). The exaggeration in both cases is obvious enough that Pepsi faced no other attempts to obtain the jet, and to my knowledge nobody has tried to go to court over lack of magical transport to Disneyland either. There is no requirement that nobody will take it seriously for a court to consider it puffery, though there is no evidence that anyone, including the plaintiff, took it seriously. In both cases, remove the exaggeration, and you're left with something actually on offer: the Disneyland trip, or the items actually in the Pepsi Stuff catalog. But in any case: it's irrelevant. Just presenting them in an ad does not create a binding contract to provide one even if you don't believe it was exaggerated, because as the court made clear, an ad only creates a binding contract if it presents a clear unambiguous offer - the absence of any kind of limitations to the offer makes it clear it is not a binding contract. But the absence of those elements also makes it clearer that the "offer" was made in jest - there were no elements in that ad that suggested Pepsi intended to make a binding offer, and nothing to accidentally have caused them to make one.
  - benj111 7y ago
    "In the Disneyland example, what is being "sold" is the Disneyland trip" In my example the Disneyland trip was a prize. We agree that the magical transportation is puffery, as we agree that the child travelling to school in a jet is puffery. But just as it doesn't automatically follow that just because the magical transportation is puffery, so too is the Disneyland prize. It doesn't automatically follow that the jet plane itself is puffery, just because the teenager travelling to school in one is puffery. $700k is a lot of money, that in itself is going to limit how many people are going to try to buy anything. And lets say they did believe they were going to get 'a' Harrier maybe they thought it was going to be a second hand Mk1 Harrier that isn't worth nearly so much, and even then how do you go about valuing and selling something like that. A nation state probably wouldn't be interested, so a private collector, but how many of those are there? Would they want to buy from a Pepsi swilling teenager? How quickly? How much storage and transport/fuel fees are you going to incur? All of that is itself enough risk to justify only $700k on a potential $23m. You're right that its a contract issue, even if they had advertised an actual Harrier for $700k they still wouldn't have had to sell it ( under UK contract law anyway, I understand it to be the same in the US)