The organizers of the Oct. 15 gubernatorial debate have accused Charlie Crist of breaking the rules. From a legal standpoint, that simply isn’t true.
A contract is an agreement courts will enforce. To be enforceable, the agreement must be made for a legal purpose (no drug deals), must be mutually agreed to by people (yes, this includes corporations) with capacity (incorporated or 18, sober, and sane) and must include “adequate” consideration (you can’t sell your Ferrari for $1, but you can for $1 and a rug, for reasons better left to a future article). Though not ideal, some contracts can be made orally, while others, like the sale of property, must be written.
A person enters into a contract when he has “accepted” an “offer.” If a person is sent a contract but sends back a signed altered version of it, it is a “counteroffer” and thereby necessarily rejects the original contract. The second person may reject the counteroffer, accept it, or respond with another counteroffer. Under certain circumstances, the second person may accept the counteroffer through omission or inaction.
That is likely the case here:
The organizers sent both the Crist and Rick Scott campaigns an identical debate agreement, which stated that no electronic devices could be used, “including fans.” This was the organizers’ “offer.” Scott’s campaign accepted the offer and the Crist campaign signed the agreement but added the statement “With the understanding that the debate hosts will address any temperature issues with a fan if necessary.”
Florida law would treat the Crist’s altered contract as a “counteroffer” and therefore a rejection of the organizers’ offer. Assuming that the Scott campaign knew about the counteroffer, and the various parties, including the Crist campaign and the debate’s sponsors and organizers began to rely on the agreement by expending money and resources toward promoting and preparing for the debate, the Scott campaign effectively “ratified” the Crist campaign’s “Fan Amendment” through its inaction to object.
(If the organizers failed to notify the Scott campaign of the counteroffer, than the Crist campaign was still entitled to the fan and the Scott campaign’s attorney is also likely entitled to an animated conversation with the debate organizers.)
This new agreement allowed for Crist to have his fan if he felt the temperature warranted it, and created a duty for both Crist and Scott to appear for the debate. When only Crist appeared, Gov. Scott (in my opinion) was in breach of contract.
Moreover, had he not finally changed his mind after a fun but uncomfortable seven minutes, Scott may have even been liable for the damages caused to the debate sponsors, organizers and the media outlets that spent good money traveling to an event promising two candidates.
Finally, the obligatory caveat. I have seen and read what appear to be the relevant documents, but there may be other applicable documents I am unaware of, so please don’t confuse this My View for a proper legal memorandum.
Richard Junnier is the immediate past chair of the Leon County Democratic Executive Committee and also has served as its special counsel for campaign finance and election law. He practices both election law and contract law throughout Florida. Contact him at email@example.com.