Bill Maher’s Gambit Or Why Donald Trump Loves Lucy

By Mark Esposito, Guest Blogger

The Contract From Lucy v. Zehmer
The Contract From Lucy v. Zehmer

Bill Maher’s caustic but hilarious shtick may have landed him $5 million dollars worth of trouble. Appearing on Jay Leno’s The Tonight Show, the comic best known for his HBO series, Real Time With Bill Maher, laughingly “offered” a cool 5 extra-large to charity if  perpetually hair-challenged, right-wing real estate mogul, Donald Trump, publicly  coughed up his birth certificate. Saying he was reasonably sure that Trump was the “spawn of his mother having sex with orangutan,” Maher asked to see the document then pledged to pay five charities of  The Donald’s choosing. Trump, who is no stranger to “birther” strategies, had famously offered to pay the exact sum to charity if President Obama produced his college records and passport application.

Summoning his consiglieres, Trump took Maher up on the challenge and produced his apparently precious certificate of life birth.  Trump then demanded satisfaction  –and the payment  — which Maher  refused saying during a segment of his cable show that:

“They seem to be trying to set a bold new precedent that jokes on late night talk shows are now legally binding agreements between the comedian and the person they’re making fun of. The legal system in this country is not a joke — it’s not a toy for rich idiots to play with.”

“Rich idiot” or no, Trump then set about to prove his claim in court. Maher offered his own assessment on Trump’s legal chances:

“Donald Trump must learn two things: what a joke is and what a contract is,” Maher said. “This is known as parody, and it’s a form of something we in the comedy business call a joke… really, we’re going to court about this?”

The case reminds me of famous Virginia case involving a family member of mine. Without a boring dissertation of the intricacies of  offer, acceptance, and consideration, suffice it to say one can certainly make a contract  under strange circumstances. In the Virginia case,  Lucy v. Zehmer, a joke became quite a bit more. Having just finished a Smithfield ham dinner at the Ye Old Virginnie Restaurant in rural Dinwiddie County a few days before Christmas 1952, two old friends ordered up some alcohol-laced refreshment and took stock of the preceding year.  A.H. Zehmer was a well-to-do farmer and land speculator. His tablemate, W.O. Lucy,  ran his own less successful construction business. Following some more refreshment, the two got into a good-natured argument about whether Lucy had $50,000.00 at his disposal. After a 40 minute discussion, Zehmer set about to prove he didn’t by calling Lucy’s presumed bluff.

When the bill came, Zehmer paid the tab and then wrote on the back that “We hereby agree to sell to W.O. Lucy the Ferguson Farm complete for $50,000.00, title satisfactory to buyer.”  He signed it and told Lucy to pick it up the next day at his home. The farm in question comprised 471 acres and was worth quite a bit more than $50,000.00 even in 1952 dollars. Zehmer even induced his wife, Ida, to sign it right there below his signature. He also made a few requested changes to the offer at Lucy’s insistence. The next day Lucy dutifully  came over and picked up the note, pocketed it, and left without saying anything except “good-bye.”

Lucy came up with the money and demanded the deed to the farm from the Zehmers. When that didn’t happen, Lucy sued his old friend for specific performance on the contract.  Zehmer defended saying the whole thing was a “joke,” and that he was “higher than a Georgia pine” when he signed the back of the restaurant bill. Lucy said it was no joke and he wanted  the farm.

The Virginia Supreme Court had no sense of humor about the deal saying, ” “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. `The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.”  Thus if a reasonable person would think the offer was real, it is real, alcohol and merriment notwithstanding.

Lucy bought the farm. We’ll see shortly if Bill Maher has to.

~Mark Esposito, Guest Blogger

Here’s the Maher “offer”:

Source: Politco; Lucy v. Zehmer, 196 Va. 493 (1954).

42 thoughts on “Bill Maher’s Gambit Or Why Donald Trump Loves Lucy

  1. I don’t think Trump stands a chance due to the parody exception and Sullivan. The participants in this case are considerably different than the participants in Lucy as are the circumstances of the alleged offer.

  2. Mark,

    As Maher said on the show Trump produced only a copy of the short form of the birth certificate, not the original one which Trump had requested from the President. Doesn’t then the principle of estoppel come into play since Trump had publicly acknowledged that the type of birth certificate he produced was not one Trump himself publicly declaimed as true evidence. Secondly, the context of Maher’s original statement was in a form that could only be construed as satire. Even a man as dim-witted as Trump knew this and he thought his producing the birth certificate was funny. Trump doesn’t understand that his existence as a celebrity, is in itself hilarious, in a very sad way of course.

  3. Spend five minutes looking up the law on the “statute of frauds” and “Hustler Magazine v. Falwell”. Maher is in no trouble. Even if Maher’s offer isn’t seen as a joke, which it certainly was since he was both parroting Trump’s own words and claiming his father was actually an orangutan, an oral contract for this much money would be unenforcible. One has to wonder if Trump’s lawyers make Trump sign a waiver before filing the suit, acknowledging the lawsuit is complete b.s. and for publicity purposes only. Though I suppose not since if such an agreement would subject the attorneys to sanctions for knowingly filing frivilous suits. Maybe Trump has retained Orly Taitz as his in-house counsel.

  4. I enjoyed the family history Mark! It only goes to prove that alcohol and business do not mix!
    I believe that Maher is on solid ground, and if the courts agree, will Maher be able to collect for his attorney fees??

  5. I suspect Mr. Zehmer was a bit of a bully who got his comeuppance. If he didn’t bully his wife into doing his bidding, she would have told him to sign away his half of the farm for $50,000 but she wasn’t joining him. She and Mr. Lucy would then be co-owners of the farm. She didn’t though. Let’s hope she got at least half of the 50,000 in the divorce settlement.

  6. mespo:

    did Lucy give the farm back? If not, I guess it is safe to say they did not remain friends.

    In the end what happened to Lucy and to Zehmer? How did their lives work out afterward?

  7. I hope Trump wins. Maher bills himself as a political commentator…quite different than a comedian. It was a verbal contract. A challenge if you will. Or does Mr. Maher’s word means nothing.

    Besides, all I think of when I see him is the movie House II.

  8. It’s surprising to me that a BigLaw firm has taken this case. Don’t the rules of professional responsibility require the filing attorney to affirm that he honestly believes the lawsuit is not frivolous?

  9. MMF:

    I don’t think it’s frivolous at all. It’s a jury question on the reasonableness of the offer. That said, the big firms will always try to appease their big clients.

  10. Jay Leno. Birthed in a subway. Trump. Birthed in Coney Island. Turdy Turd and a Turd. AFLACK Duck speaks more of the Kings English than those two schmucks.

  11. “The Donald” has ten (10) Law Firms (not 10 attorneys) and ten (10) Accounting Firms (not 10 accountants) handling his myriad ventures. While I may give the Donald the benefit of the doubt about his orangutan ancestry, he should realize that Maher whether you like him or not –is a political comedian, NOT a political commentator (a la Chuck Todd on MSNBC) as someone intimated above. Yes, there is a difference between Maher and Chuck Todd. I sincerely hope Maher wins and wins BIG TIME … The Donald is certainly using this for more free publicity — positive or negative. IF Maher were to lose and I do not see that happening it would put a real chill on ythe political comedians. Hopefully, we will never even get close to that — meaning going to trial ….

  12. I wonder if it could be argued that Mr. Maher was just speaking in general or if it could be construed to be a direct offer to Mr. Trump. I wouldn’t think so but I don’t know much about this issue.

  13. This link is Mahers 5 minute response Friday nite to Trumps “lawsuit”
    Whether you are a fan of Bills or not the exposition that begins at the 2;20 mark is a must see. Maher shows Trumps lawyers response. It is so absurd the Donald must be playing a Baboon on purpose, or he really is one.
    The 3rd alternative is his lawyers ethics are such that the statement
    “What the Boss Monkey says, the Bosses lawyer Monkey do”. is the mission statement of the lawyer. Absolutely numbing …IMO

  14. Nothing like a story like this one to bring out all the under achiever Donald Trump critics.

    I hope Mr. Trump kicks this excuse for a man (with a lot of mouth but nothing to back it up it seems) all the way to the bank and he is forced to cop up for charity. Trump would not waste time and cash if he did not have a case.

    As for the author’s description of Mr Trump, namely:

    “perpetually hair-challenged, right-wing real estate mogul, Donald Trump”,

    perhaps the author could show us a photo of his hair so we could all share a laugh at that as well.

    Oh, and by the way:

    – what is wrong with being right wing?
    – what is wrong with being a real estate mogul?

    Perhaps the author could give us a run down of Mr Trump’s business achievements and net worth along side a list of his own.

  15. The point is this – quite besides the fact that humans and orangutans cannot reproduce, a birth certificate cannot prove who or what the father of Donald Trump is. What is stated thereon is nothing more than the say so of his mother. The case is fraught with dangers for perpetually hair-challenged, right-wing real estate mogul, Donald Trump.

    And yes Kirk – there is something wrong with being right wing: Donald is walking proof that it is the stupid party.

  16. @Mespo
    I was inartfully trying to address two issues. 1. One simply cannot have an oral contract for anywhere near $ 5 Mil. (The statute of frauds issue), and 2. Satire/comedy has (atleast since they jailed Lenny Bruce; and yes I know that was an issue of obscenity not contracts) been protected increasingly as free speech for the past 40 years. I mentioned the Falwel case beause I believe it was argued by Hustler and excepted by the Court that certain types of hyperbolic statements are by definition unbelievable not inspite of but because they are supposed to be humorous. Trump says,”I’l give Obama $ 5 Mil to the charity of his choice if he produces a birth certificate showing he was born in Hawaii”; knowing full well the govener (Rep.) of Hawaii has already issued a statement that the POTUS was born in Hawaii, and that the Honolulu Gazette (or whatever it’s called) had a birth anouncement in 1962 etc etc etc. He keeps on with this thinly veiled racist clap-trap even AFTER the birthcertificate is released. So when Maher says he’ll give Trump the same amount of money to proove he’s not a orangutan, it’s satire, a joke, protected, period. He could have as easily say he’d give him $5 Mil. if he could prove that he was not simply a walking talking a**h***, but I’m not sure Trump would have been so quick to have taken up that challenge. In the words of Foghorn Leghorn, “It’s a joke, son. Get it?”

  17. The Lucy case was certainly entertaining, but not relevant to the Trump as Orangutan case. We have two farmers who have a written contract with consideration versus a comedian and satirist joking about an orangutan’s previous statement without consideration or writing. Perhaps Lucy was only mentioned for its entertainment value?

  18. I think Maher and Trump should have a “cage smug” competition. I think Maher is the king of smug so my $’s on him.

  19. Cameron, shall we include Trump’s bankruptcies and use os political allies to get his way?
    I see Lucy’s contract being valid, (I am not an attorney) but it was signed and then co-signed. As for Trump commercials: on, a lot, last night for the you’re fired show he has so yep, seems like this is the typical Trump and his attorneys going along with it, pimping his show using any method(s), and venue(s), he can.

  20. seamus,

    To paraphrase Foghorn on Trump even further: “He’s built too low to the ground. The fast ones go right over his head. He’s got a hole in his glove.”

  21. I can’t decide if Trump is so thin-skinned that the lawsuit is for his hurt feelings, or if he is so hungry for publicity that he’s willing to continue being the butt of the joke. (yes, raff, it’s yes and yes). I don’t believe it’s for the money unless he’s so humorless that he doesn’t recognize a joke when he hears it. Maybe he doesn’t recognize the joke as such when it’s about him.

  22. brian:

    “Perhaps Lucy was only mentioned for its entertainment value?”


    That’s a legitimate question and here’s the answer: Well sort of, but my overarching point was that both Maher and Zehmer were both trying to make a point with their supposedly funny “offers.” In might have been humor or maybe humiliation but certainly something was in the mind of the makers of the offer that had little to do with the value of the thing allegedly contracted for.

    In the Virginia case, the court looked to the objective nature of the offer and held the maker to it despite his private intentions. His pleas of joke and alcohol were not rejected but simply made part of the context along with all the other facts. In Maher’s case, it might be a humorous comment but he looks smugly serious as he pitches it. (I say this as Maher fan). Maher notes that Trump made a similar legitimate offer which he is apaprently mocking. Maher can certainly afford the “bet” and the question is whether the context was such that a reasonable person could conclude the offer was legitimate. Comedians make contracts all the time. If they do so with a smile or a wisecrack accompanying the offer is it not an offer? Only the jury knows for sure.

    Maher raises a jury question that might survive a motion to dismiss and if it does would he want his financial situation in the hands of 6 or 7 seven folks he doesn’t know? Trump knows he doesn’t and has won by making his point that Maher won’t put his money where his mouth is.

    Maher stepped on it here regardless of outcome.

  23. seamus:

    “. 1. One simply cannot have an oral contract for anywhere near $ 5 Mil. (The statute of frauds issue), ”


    Here in Virginia we don’t have a monetary ceiling on contracts subject to the statute of frauds except credit contracts over $25,000.00. Your state obviously is different so, of course, I defer to your interpretation there.

  24. @Mespo
    I can’t even pretend to know what the current law is. I just remeber in law school the general common law seemed not to recognize oral contracts over $2000. So I guess I shouldn’t attempt to sit for the bar exam in Va. anytime soon.

  25. Re: Statute of Fraud

    Performance by one party (e.g., production of the birth certificate) renders null application of the SOF (in some states)

    But it has to really be a contract in the first instance

  26. Trump has gone out of his way to characterize himself as a joke, with his silly media ventures, his absurd hair, his stupid catch-phrase “you’re fired,” his pretense at being a great businessman (when he’s been involved in multiple bankrupcies and ended up selling his casino for a fraction of the cost that he originally paid). Then, not content with thatm Trump made a further joke of himself by injecting himself into the Obama birther debate.

    Now, Bill Maher–whether you like him or not–is recognized as a comedian, and sometimes a “political” or “edgy” comedian. And as part of their comic acts, comedians often do a number of things that “make fun” of prominent personalities like Trump–whether it’s insulting him, demonstrating how absurd he is, and so forth. In short, comics can and do take a lot of comic liberties with prominent people, and, most importantly, they get away with it (for the most part). So, while I can appreciate that a contract can be made under unusual circumstances, this is not one of them. A joke is a joke, and Trump is an idiot for persuing this, making yet another joke about himself.

    What’s next for Trump in the legal arena: a lawsuit against some comedian for making fun of Trump’s hair, with Trump claiming loss of consortium as the direct result? Trump’s lawsuit has about as much merit as a suit based on damages for “bystander trauma,” for spectators who happen to be present during terrible accidents.

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