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Sunday, February 9, 2014

Acceptance by Tattoo?

This article in the WSJ coincides perfectly with my syllabus as we are now finishing up our segment on offer and acceptance.  Apparently, in the early to mid-nineties, the band Rocket from the Crypt agreed to let in free to their concerts anyone with a tattoo of the band’s logo. 

As with many messy offer and acceptance scenarios, it started informally.  The band members got tattoos of the  logo – of a rocket blasting out of grave – and a few of their friends decided to do the same.  Eventually, the band decided to let anyone with the tattoo get in free to see them play.  They were a small band then and so whoever had the tattoo was probably a friend (or a friend of a friend) of a band member.  But the band grew in popularity – and so did the number of tattooed fans.  At their 2005 farewell concert, 500 rocket-tattooed fans got in free.

Now the band is preparing for their reunion tour.  Tickets are selling out. There’s just one small problem.  Many of the venues where they are scheduled to play don’t want to honor the free-admission-with-tattoo policy.

In my humble opinion, it doesn’t sound like the band actually made an offer to anyone, much less the public at large.  The terms weren't definite - how big did the tattoo have to be?  Could it be anywhere?  For how long would fans get in free?  Were there any limits? 

But the band did honor the “tattoo-as-ticket” in the past.  Does that then give rise to an implied contract?  Or is there an equitable estoppel argument that could be raised given the fans’ reliance?

As interesting as this may be to ponder for contracts profs, in the end, I think there should be no enforceable contract and no estoppel claim for the simple reason that the band never intended to make an offer to the public at large.  Furthermore, it doesn’t seem reasonable for someone to get a tattoo based upon what they understand to be the band’s informal policy of letting tattooed fans in free.  The practice was a custom that grew organically, rather than a promise that must be kept as long as the band plays or the tattoo lasts.  Not everything is a contract.  If there was some sort of actual promise made, the band's promise was likely one to make a gift (free admission) to show their appreciation to anyone who had a tattoo.  In other words, the band members weren't bargaining for fans to get a tattoo, and they weren't bargaining for them to show up to the venue with a tattoo - rather, motivated by affective reasons, they made a donative promise to let in their most loyal fans, the ones with tattoos, for free. 

 

 

 

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Comments

For a more formal example of the tattoo-for-discount model, see Cleveland area restaurant Melt.

http://meltbarandgrilled.com/melt-tattoos/

Posted by: Aaron Perzanowski | Feb 10, 2014 1:07:04 PM

I must register a rare disagreement with Nancy’s take on this. If the band did make the offer, then this is every bit as much of an enforceable contract as the reward contracts, public contest contracts (hole-in-one, tagged fish) or carbolic smoke ball contract. It is an express, not implied in fact, contract. The course of performance gives the court assurance that both parties understood what the offer meant and eliminates the problem of vagueness. The performance was bargained for because it benefited the offeror in the way that many enforceable promotional contracts do: the fans become walking banner ads for the group. And Section90 is also clearly satisfied given the serious nature of the invited reliance.
But Nancy’s point that the band did not make a public offer raises the most interesting question, one that I have not seen elsewhere. The band clearly let it be known that it would honor the tattoos and it knew that the word had gotten out and never publicly contradicted it. They apparently accepted the benefit, such as it was, of the fans’ compliance. If I were the judge, I would find these manifestations in the relevant market to be effective offers and acceptances.
But then of course we have the vexing question of remedies.

Posted by: sidney delong | Feb 11, 2014 11:33:11 AM

Hi Sid,
I think you were right to disagree with me because I think I disagree with me now, too! The issue for me was whether there was in fact an offer - not assuming there was an offer. It was unclear that there was one based upon the article. But it turns out that it may not have been all that unclear after all - a student of mine sent me this wikipedia entry for the band http://en.wikipedia.org/wiki/Rocket_from_the_Crypt which states that the lead singer had announced in a fanzine that all fans with the tattoos would be allowed into the band's shows free "for life." I think this takes care of both the intent and the definiteness issue. The fact that they enforced this promise indicates this was not just a "joke." Just another example of an ill-thought out offer for a unilateral contract to the public at large...

Posted by: Nancy Kim | Feb 12, 2014 9:47:15 AM

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