By Mark Esposito, Guest Blogger

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).