Bargain Theory in the Greek System

Back at Pike, BC would always hear me profess on my implied contract theory regarding greek social relationships, specifically in the context of certain social occasions known as "invites" or "vegas." The main argument proposed was that upon acceptance of the offer to attend such event, the offeree would be bound by the terms of the implied contract. In the most general of terms this means that, for example, by agreeing to attend said event, the offeree will provide some benefit to the offeror.

Last Stand's brother blog has influenced me to inject some legalese into my blog. Therefore, I would like to take the opportunity to revise my earlier theory and apply it to a social mainstay at USC - The Vegas Invite.

I. Contract Theory - Generally

In its most basic form, only four elements must be satisfied to form a legally enforceable contract.

(1) Offer
(2) Acceptance
(3) Mutuality of Assent
(4) Consideration

The offer is any statement or act that is intended to immediately bind the offeror (the one presenting the offer) to the offeree (the one who may accept the offer)

The acceptance is any statement or act that is specifically intended to immediately accept the terms of the offeror's offer, and likewise bind the offeree to the offeror.

Mutuality of Assent is the idea that each party reasonably (i.e. an objectively reasonable person would agree) intended to bind themselves to the agreement.

Last is the linchpin of American contract theory: Consideration. This is arguably the most important element of a contract. Put very simply, consideration is required by both the offeror and the offeree. It is the value that each party gives up, in order to engage in the agreement. Historically, two consideration theories have developed: (1) the benefit-detriment theory, and (2) the bargain theory. Under the former, consideration is present where there is either a benefit conferred on the promisor, or a detriment suffered by the promisee based on their reliance of the agreement. For an example of how this would play out, lets say that Adam needs a loan so he asks Brian to loan him $100. Brian tells Adam that he will loan him $100, and give him the money that night, if Adam will pay him $110 within one week, and Adam agrees. Brian never pays Adam. Is there a contract? Assuming that there was a valid offer, acceptance, and mutuality, then under the benefit-detriment theory, there is also consideration and therefore an enforceable contract.

Why? This example highlights the key aspect of the benefit-detriment theory, notably the idea that there only need be either a benefit conferred to the promisor, or a detriment to the promisee. Here, We can assume that Brian was in dire straights if he needed $100 now. We may also assume that when Adam told Brian that he would lend him the money Brian thereupon relied on Adam's promise. In this case, reliance most likely meant that Brian stopped looking for a loan from alternative sources when he agreed with Adam. Therefore, since Brian lost the opportunity to pursue other loan options because he had relied to his detriment on Adam's promise, there is an enforceable contract.

For its relative simplicity, the benefit-detriment theory does have a drawback, as was illustrated in the prior example. Notably, the theory does not easily comport with the other three requirements of a contract, each of which require more mutuality of agreement between the parties. Here, if a benefit-detriment approach is taken, all that is needed to form the consideration for the contract is either a benefit to the promisor or a detriment to the promisee, not both. For this reason, at the turn of the century, courts began to develop an alternative consideration theory that comports with the themes of mutuality: the bargain theory.

The bargain theory has come to dominate American contracts law. In essence, consideration is viewed as a bargain. And what is required to meet this threshold requirement is simply an exchange of promises between the promisor and the promisee. Thus, courts will find an enforceable contract where each party to the contract has demonstrated that they have given up something in exchange for the promise of the other party. The "something" need not be tangible. To see how this plays out, here is another example: Adam's uncle, Brian doesn't like his nephew's life choices. Adam gambles, smokes, does drugs, and boozes wayyyy too hard. Brian wants to change his nephew's behavior so he tells Adam that he will pay him $1,000 to refrain from these vices for six months. Adam stops gambling, smoking, doing drugs, and limits his booze intake. Six months go by and Adam is clean. Before he can collect his money, his uncle Brian dies. Can he enforce the agreement and get the $1,000? Here, under the bargain theory, there is a contract.

First, Adam gave his promise to Brian not to engage in the activities and in support of that promise, he forewent participating in those activities which he would have. Thus, he gave up something in exchange for Brian's promise. On the other side of the equasion, Brian gave up $1,000 in exchange for the knowledge that his nephew had changed his life. Therefore since each gave up something, in exchange for the other's promise, there is a consideration.

II. Application to a night at the 9-0

You've been partying at the frat for 3 hours now, probably downed close to 15 beers and at least 4 random shots of whatever was in Kellen's freezer. Now (12:30 am) its time to go to 90 to find a date for your Vegas invite. You go inside and hit the bar when you see a potential babe in the torn up booth by the smoker's corner. You start talking and next thing you know you pop the question re vegas, and she is in. You are a 5 year senior and she is a junior, so right away you know that she is versed in the greek system and is accoustomed to these types of social occasions. The next week, when you get on the bus and start partying, things aren't going so hot and it seems like you may have blown it by asking a girl who is not down to fulfill her vegas weekend obligations (i.e. get you laid). Well, you're past Barstow and too drunk to drive back to get another chick... what do you do?

Answer: enforce the contract.

Politely, pull her aside and inform her that the two of you have an enforceable contract for the weekend, which includes those certain weekend obligations discussed in the preceeding paragraph. If she balks, simply run through the elements and apply the bargain theory:

(1) Offer - Valid offer, sufficiently detailed and intended to induce an immediate acceptance to enter into an agreement.
(2) Acceptance - Valid acceptance, narrowly tailored to the offer, and intended to bind the offeree to the offeror's offer.
(3) Mutual Assent - You inform her that any reasonable greek junior on the row would know exactly what the terms of a vegas invite entail, likewise, any reasonable greek 5 year would also understand the terms, therefore this element is met.
(4) Consideration - Under the bargain theory, you inform her that there has been a mutual exchange of promises. You have promised to take her to the invite. In exchange, you gave up opportunities to take other women and have also made significant expenditures in reliance of that promise. Thus, in return for the hotel, bar tabs, and general good time that she is receiving, she has given the promise to faithfully execute the terms of the contract on her end.

Therefore, there is a contract between the parties and she is bound to the terms.

However, this may be difficult to explain on a bus with 80 dudes and babez in the middle of the desert, so I would also reccomend foregoing legal aid and focusing on self-help (i.e. - instruct both of you to step up the drinking until you get along).

Chairseo