The Unintended Consequences of Your Words

The Unintended Consequences of Your Words

The Unintended Consequences of Your Words

Words have power! Recently, as I was out for a late-night snack, I came across an advertisement of a local restaurant that read: “If you’re smiling we’re hiring.”

This sign made me think back to Contracts class in my first year of law school. Particularly, I recalled a case that many first-year law students read about, which considered whether a contract results from an advertisement addressed to the general public. The case was Leftkowitz v. Greater Minneapolis Surplus Store, 86 N.W.2d 689 (Minn. 1957).

The Leftkowitz case involved whether a contract was formed when a shopper arrived first at a store, with money in hand, in response to the store’s advertisement of fur coats for sale for $1 on a “first come, first served” basis.

The teaching lesson of that case was “a binding obligation may originate in advertisements addressed to the general public . . . ‘[if] the facts show that some performance was promised in positive terms in return for something requested.'”

This statement of law is consistent with Pennsylvania cases that have addressed the issue. While, generally, advertisements do not constitute offers to enter into a binding contract, advertisements can create legally binding obligations “if they contain language of commitment or some invitation to take action without further communication.” Bourke v. Kazaras, 746 A.2d 642 (Pa. Super. Ct. 2000).

So, you can be the judge: does this advertisement contain “language of commitment”? If a job applicant is simply smiling, is the restaurant agreeing to hire them without qualification? Whatever the answer, the question is at least arguable, and for the unsuspecting employer that sort of “grey area” is dangerous ground to be on.

Words have power! And the words we choose, particularly in our small businesses, are important because they could open the door to creating unintended legal obligations.