CHARLES FRIED: Let's move on to the second kind

of a promise, which isn't a contract.

Here's how a court described it.
It took place a long time ago.
The judge found, as facts, that Keller gave Holderman a check for $300.
The check was given for an old silver watch worth about $15, which Keller
took and kept till the day of trial when he
offered to return it to the plaintiff, who refused to receive it.
You can see the picture.
You can just imagine how this worked.
The whole transaction, the judge found, was a frolic and banter.
The plaintiff, not expecting to sell, nor the defendant,
intending to buy the watch at the sum for which the check was drawn.
And the judge said since this was a frolic
and a banter-- those are the words the court used, a frolic and a banter.
Probably a couple of drunks fooling around in a bar.
This was not a serious contract.
This was not meant to be a purchase or a sale.
And this is not a lawsuit which the court is going to fuss about.
And the check is worth nothing.
This speaks for itself.
You know if in either the invitation to dinner example or the $15 watch sold
for $300-- which by the way, in those days was a lot of money--
if any court would enforce that, the people would say, "well, the law..."
to quote Doctor Johnson, ..."is an ass."
The principle that this last example reveals
is that when both parties know that the promise is a joke, when
neither side takes it seriously, well, that's just not the kind of situation
where the government wants to be hauled into,
use its force to stand behind the interaction.
Now of course life is full of people who sell things
for much, much more than they're worth.
They give a check and those checks are honored and have to be honored
and should be honored, because it's up to you
to decide how much you want to pay for a designer set of shoes
or for a silly hat.
That's up to you.
And you don't want the courts figuring well that hat or those shoes
only cost the manufacturer about $20 to make.
So we're not going to allow anybody to buy them for $400.
Why not?
If people could only pay what these things are worth,
the whole fashion industry would be in deep trouble.
Those are real deals.
But the silver watch wasn't even that kind of a real deal.
It was no deal at all.
It was a frolic and a banter.