Harris v. Time, Inc.

191 Cal. App. 3d 449, 237 Cal. Rptr. 584 (1987)



Advertisements are not typically treated as offers, but merely as invitations to bargain. There is, however, a fundamental exception to this rule: an advertisement can constitute an offer, and form the basis of a unilateral contract, if it calls for performance of a specific act without further communication and leaves nothing for further negotiation.


Three individuals who received direct mail advertisements filed a class action for breach of contract and unfair advertising against an advertiser in connection with an offer for a free watch in return for opening an envelope. The trial court sustained the advertiser's demurrer as to the breach of contract counts, and granted summary judgment for the advertiser as to the unfair advertising counts. The case was appealed to the Court of Appeal of California.


Was the dismissal proper?




The court held that where plaintiffs suffered no damage or loss other than having opened an envelope in the mistaken belief they would get a free watch, the legal principle that "the law disregards trifles" applied, and dismissal was proper. The court stated that the advertisement was technically an offer to enter into a unilateral contract, and found consideration in the act of opening the envelope, which subjected one to defendant's advertising. However, the doctrine of anticipatory breach did not apply to unilateral contracts so the complaint failed to state a cause of action for breach as to the two plaintiffs who failed to allege notice of performance. Despite the partial technical validity of the action, the judgment was correct based on the de minimis theory.

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