Wednesday, January 10, 2007

Good reading on ads as offers

Jay M. Feinman & Stephen R. Brill, Is an Advertisement an Offer? Why It Is, and Why It Matters, 58 Hastings L.J. 61 (2006)

By performing a close reading of the cases on which the rule “an ad isn’t an offer” is supposedly based and appealing to general contract law principles, the authors argue for a context-sensitive appreciation that ads can often constitute offers. Their argument calls attention to the statutory background of false advertising/consumer protection laws requiring that advertisers carry sufficient quantities of advertised goods, at the advertised price, to meet reasonably foreseeable demands. Given these laws (and their underlying rationales), consumers can and should expect that sufficiently specific ads are offers. As they point out, quoting another contracts scholar, it is ridiculous to think that consumers expect that ads are merely invitations to negotiate, as the dominant theory has it. In the modern economy, an advertiser whose ad said “TV sets $50” but who, in the store, said “TV sets are $500; my ad was just an invitation to negotiate” would be a liar, a cheat, or both.

Inexplicably, the Hastings L.J. makes tables of contents, but not articles, available online. It should do better.

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