DennisBeaver

August 8, 2015 • By Dennis Beaver

“Mr. Beaver, my name is Devin and I live in Lexington, Kentucky. Earlier today I stopped at a used car lot looking for a truck. The salesman walked me over to a 2000 Chevrolet S-10 for $3500 and said:

“If this truck doesn’t start on the first try, I’ll give it to you.” “I replied, ‘I’ll hold you to it,’ to which he responded, ‘OK.’ ”

“After repeated attempts to start the engine normally, as the truck has a manual transmission, we were finally successful by push-starting it. Before leaving, I inquired about the deal we made and he firmly held the position that it did start on the first try!

“I then spoke with the owner; he also refused to honor the agreement I had made with the salesman. I can email the video of that conversation if you would like to see it.

“A simple apology was all that I expected, but when they began raising their voices and lying, this really made me mad. What legal actions are possible for me against them?”

You bet we wanted to see that video! And it was a riot!

There in High Definition was Billy Bob, as backwoods a used car dealer you’ll ever find, sporting a belly screaming for a life-time membership in Jenny Craig.

“You ain’t gonna get no free truck, and I don’t care what my idiot nephew over there told you. No free truck, get it? Now get outta here!” yelled Billy Bob.

“But we made a deal!” Devin politely insisted. But there would be no free truck for our reader that day, or ever.

“Why?” you are probably thinking right now. “They had an agreement, and the truck didn’t start on the first attempt, so, Beaver, this can’t be so, I mean, you are a consumer advocate! What are you saying?”

Would a court enforce the agreement?

Yes, they had an agreement, a perfectly clear oral agreement — and oral agreements are generally valid. But would a Kentucky court enforce that agreement?

If Devin sued Redneck Motors for title to the truck, can you see a judge telling Billy Bob, “Now you listen to me, cousin Billy, put down that jar of moonshine, sign title to the Chevy over to Kevin right now, and save me some of that whiskey!”

Oh, you could see that? (You’re not alone.)

When we ran the facts by several of our readers–who had not attended law school–all felt that Kevin should receive the truck or compensation, picturing him in that hot, humid Kentucky weather. “After all, a deal is a deal. It’s morality, all about keeping your word,” was the general feeling.

But when presented to lawyers, an opposite conclusion was reached, “Which illustrates how common sense and the law sometimes does not mesh,” explained Professor Bryan Hull of Loyola University Law School in Los Angeles.

Not All ‘agreements’ are legally enforceable

“For a promise to be legally enforceable, something has to be given in exchange for it and we call that consideration. Think of it as the benefit each part to a contract will receive. Even for law students this is a concept somewhat difficult to grasp, because common sense tells us that we should always keep our word.

“Long ago our legal system realized that certain agreements or promises should not enforced, such as promises to make a gift, which we often see in family settings,” Hull notes.

“In one, a brother-in-law offered his widowed sister in law land on which to live and then kicked her off the land. The court found this was simply an offer of a gift and lacked consideration, as the sister-in-law neither promised nor did anything in return.

“Kevin’s situation is similar, the salesman telling him if the truck does not start on the first try, he can have it. But Kevin offered nothing in return. This means the “agreement” lacked consideration. With no benefit promised, offered or given by Kevin to the salesman, we are left with an offer of a gift and therefore, not an enforceable contract.

“It is important to point out that some offers to make a gift do carry legal weight, for example a pledge of money to a charity or university. People have been successfully sued for making a pledge and then not honoring their obligation.

“Also, where it is foreseeable that the promised gift is relied on, and expenses are incurred, courts have not been pleased with the donor.

“Finally,” Hull notes, “You cannot accept an offer that is the product of intoxication, was obviously made in jest, or was clearly not serious.”


Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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