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Leonard v. Pepsico, Inc. - 88 F. Supp. 2d 116 (S.D.N.Y. 1999)


An advertisement can not be considered an offer, where a reasonable person would not take it seriously.


Plaintiff saw a Pepsi advertisement showing that "points" could be earned by purchasing its products and exchanging them for Pepsi merchandise. At the end of the ad, a student was shown landing a Harrier Jet at school with a subtitle that indicated the cost of the jet was 7,000,000 points. The terms of the promotion indicated that additional points could be purchased for ten cents. Plaintiff, with the assistance of several friends, accumulated enough money to "buy" the Harrier Jet and sent a check to the defendant, demanding the jet. Defendant refused and sent a letter to plaintiff explaining that the jet was not an item for purchase and referred him to the promotional brochure for the rules. Plaintiff then sued for breach of contract. Defendant filed a motion for summary judgment. The court granted the motion and stated that advertisements were not contracts or offers to sell, but rather invitations to negotiate.


Did the Pepsi commercial constitute an offer to sell?




It is quite possible to make a definite and operative offer to buy or sell goods by advertisement, in a newspaper, by a handbill, a catalog or circular or on a placard in a store window.  Such advertisements are understood to be mere requests to consider and examine and negotiate; and no one can reasonably regard them as otherwise unless the circumstances are exceptional and the words used are very plain and clear. The commercial was merely an advertisement, not a unilateral offer. The commercial cannot be regarded in itself as sufficiently definite, because it specifically reserved the details of the offer to a separate writing, the Catalog.

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