WOE UNTO YOU, LAWYERS!

For instance, if a man says to his gardener, “Tony, I’ll give you fifty dollars,”
that is not a legal Offer. If a man says to his gardener, “Tony, I’ll give you fifty
dollars if you’ll dig a ditch for me,” that is not an Offer either. But if the man says to
his gardener, “Tony, if you’ll dig a ditch for me, two feet deep and three feet wide,
running from the northwest corner of the house to the pigpen, and finish it by
Wednesday week (though The Law would frown on such colloquial phrasing), I’ll
pay you fifty dollars when you get it done,” that is an Offer. And incidentally, if
Tony says “O.K., Boss,” that’s a full-fledged Acceptance.
What is it that makes the third proposition a legal Offer, whereas the first two
were not? Briefly, it is the fact that it is definite enough so that when Tony says,
“O.K., Boss,” the boss knows and Tony knows and, most important, any judge
would know exactly what Tony was expected to do. Of course, the whole question
of whether something is an Offer or isn’t an Offer is based on the assumption that
Tony and his boss may some day end up in court over their conversation. And on
that basis, it seems fair enough to say that if Tony promised to do something definite,
he made a Contract (which means only that a court will hold him to his promise or
soak him for breaking it) and if he did not promise to do something definite, he did
not make a Contract. But the phony part is the way The Law brings into the picture
one of its irrelevant generalities – here, the abstract idea of a legal Offer – in talking
about and dealing with a simple business arrangement.
If Tony and his boss should ever get into court over the undug ditch, The Law
of the case would be solemnly stated like this: -- The proposition was definite;
therefore it was a valid Offer; therefore once it was accepted, there was a valid
Contract; therefore Tony must dig or pay. Or else: -- The proposition was too
indefinite; therefore there was no valid Offer; therefore there was no Contract;
therefore Tony need do nothing. The point is that the question of there being or not
being an Offer is utter nonsense. The whole business could be reduced very simply
to – the proposition was definite, therefore Tony must dig or pay; or, the proposition
was indefinite, therefore Tony need do nothing. But of course, to simplify legal
reasoning even to this small extent would make the case immediately much more
comprehensible to the non-lawyer, and would leave the lawyers with no special and
mystifying lingo in which to discuss a simple little problem. Moreover, it would
leave The Law out of the picture. The Law, remember, is that before you have a
Contract, you have to have not an offer, not even a definite offer, but a legal Offer.
To get back to the ditch, suppose Tony, instead of saying, “O.K., Boss,” had
said, “I dig him for sixty bucks, Boss,” and the boss had then said, “O.K., Tony.”
The average man would say that they had come to terms and if The Law enforces
that kind of thing, that'’ fine. The Law would enforce it, all right, but not in those
words. To The Law, Tony'’ comment would first have to be a Counter-Offer,
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