Harris v. Time, Inc., 191 Cal.App.3d (1987) p358.

Compensatory damages

The Gnaizda family received a letter from Time that showed part of a sentence through the window envelope. The sentence said "I'll give you this versatile new calculator watch for free just for opening this envelope." After opening the envelope, it was discovered, the sentence went on to say (in small print, and not viewable through the window of the envelope) the certificate to subscribe to the magazine had to be mailed in. Before beginning litigation, Gnaizda demanded that Time send a calculator watch without requiring a subscription. No watch was sent.

Harris, Gnaizda, and Baker appeal from a judgement of dismissal of this class action lawsuit. Gnaizda, an attorney, launched a $15,000,000 lawsuit against time for breach of contract, three causes of action for unfair advertising, and four causes of action for promissory estoppel and fraud. Court sustained demurrer by Time as to the causes of action for breach of contract, but overruled the demurrer as to cause of actionfor unfail advertising.

Did the court err when it sustained Time's demurrer as to a cause of action for breach of contract and granted summary judgement as to a causes of action for unfair advertising?

Although there may be claims that are partially technically correct, when the "de minimis" theory is met, the technical correctness is of little consequence.

Only in circumstances of actual detriment should a court intrude upon the exercise of what senders of junk mail might call commercial free speech and the recipients might call intrusive harassment.

The court was correct in sustaining the demurrer and granting summary judgement.

Advertisement did constitute an offer. Technically, the act of opening the envelope did constitute adequate consideration. Only Gnaizda gave Time notice of performance. This is not the case of the rich trampling the poor. A departure from this precedent should only occur under compelling circumstances, which this is not. Although there are some technically valid points, this is a clear example or de "minimis non curat lex" in the extreme. Law disregards trifles. This lawsuit is an absurd waste of the court's resources. It is not a use for which our legal system is designed.

It is Congress's place, not the courts, to eliminate intrusions into our lives such as this.

Offer: calls for the performance of a specific act without further communication and leaves nothing for further negotiation.

Consideration: any bargained-for act or forbearance will constitute adequate consideration for a unilateral contract.