Forming a Contract via Facebook:  Be Careful What You Post

“If I win the mega-jackpot, I will buy everyone who comments on this post a new car.”  If you post that on your Facebook, Twitter, Instagram, or other social media account, have you formed a legally binding contract?  Maybe.

The Nebraska, Iowa, and South Dakota courts have not yet been faced with that decision.  However, in this modern age where things have to be “Facebook official” it is only a matter of time before the courts are forced to grapple with that question.  To answer the question of how a court might decide such a case, we need to look at the most basics of contract law.  As a colleague explained it once, those elements are: “offer, acceptance, consideration, touch down!”

Offer:

Though it sounds a bit cyclical, in the legal sense an “offer” is a communication that gives another person the ability to form a contract.  It needs to be certain enough that the other person could say “I accept.”  However, one important point is that for it to be a valid offer it must be reasonable under the circumstances for the other person to believe that I am actually trying to form a contract.

Acceptance:

Acceptance is a bit more straightforward.  It is doing something that manifests assent to the offer that was made, in a manner that was invited by the offer.  In other words, if the offer says that acceptance has to be by signing the document, a lack of signature on the document may mean a lack of acceptance, even if you say the words “I accept.”  If the offer says that acceptance shall be by showing up at a particular place and time, that is the way you would have to accept. 

Consideration:

In order for a contract to form, each party must give up something of benefit.  That is called consideration.  Essentially, the person making the offer is giving up whatever they promised to give.  The person accepting is giving up money (if it was a sales contract), or giving up their time/effort, or a promise to not do something (like a promise to not sue, in a settlement), or something else.  Consideration can be just about anything and does not need to be of a certain value.  It is whatever the parties have bargained for in the contract.

Application to Social Media:

In my social media post example, it sounds like there is an offer made.  By posting that, I am offering to buy you a new car.  You could say “I accept” by commenting on my post, as I requested.  As consideration, I am promising to give up a portion of my winnings.  Your consideration could be taking the time to comment on my post, as requested.

But, is it reasonable to believe that I am actually trying to form a contract?  Such a determination would likely come down to the facts of the individual case.  If I am the type of person who is constantly posting obviously sarcastic / joking things on Facebook, then I may have an argument to say that it is not reasonable for my Facebook friends (who have seen my prior posts) to think I was seriously trying to form a contract.

But, what if a business posted the same thing on Facebook?  Businesses often post contests, and request users to “like, comment, tag, and share” to enter the contest.  Those contests are essentially forming a contract, in which the business will give “one lucky winner” a particular prize in exchange for them taking the requested action of tagging friends or sharing the post.  The benefit received by the business is clearly the increased publicity as their post is shared on social media.

With such a track record of posting contests, it would be more reasonable for users to believe that the company is actually trying to form a contract when posting about dividing the mega-jackpot winnings.  It would be harder for such a business to claim, especially after they get the benefits of all the likes, shares, etc., that they were just joking.

Conclusion:

While the Nebraska, Iowa, and South Dakota courts have not yet been faced with the question of whether a social media post can form a valid contract, it is not really that different from any other offer made to a broad audience.  While the odds of winning the mega-jackpot are astronomically low, the same principles of contract formation apply to any other post which could potentially be considered a contract.

If you have questions regarding forming or enforcing a contract, contact the experienced trial attorneys at Goosmann Law Firm, PLC, in our Omaha, Sioux City, and Sioux Falls offices.