Last one out of the Kinjaverse, turn out the lights.
Last one out of the Kinjaverse, turn out the lights.

Loki's Law Blog: Oral Murder Tacos

Illustration for article titled Lokis Law Blog: Oral Murder Tacos

Today, on the illustrious compendium of all things legal, we will answer a few reader questions. Specifically, we will examine issues surrounding Oral Contracts (Oral), Killing Hitler (Murder), and Chalupas (Tacos). So, buckle in. And, um, it’s not my fault. I hereby disclaim all responsibility for these questions. But you knew that.


1. “If someone owns something, flat out, and someone else offers them a price, any price, but the someone declines: can someone else make you sell? I suppose I know the answer to this one already, so it’s not a question.” From Mr. orcim.

Yeah, no. Specificity is the soul of narrative, and this question is a bigger dumpster fire than the most recent inauguration. But it does bring up the issue of the oral (heh) contract. How many times have you heard, “You should have gotten that in writing,” usually followed by long peals of laughter. And have you ever thought, “Huh. Did I really need to get that in writing?” Well, today I am here to answer that question. And the answer is - no, probably not, you didn’t need to get it in writing, but you probably should.


Are you ready to get you mind blown? Okay ... sit down ... wait for it ... contracts don’t have to be written. You are probably entering into tons (either metric or imperial) of contracts without even thinking about it on a daily basis. Think about this-

A: “Can you go to the store and get some milk. I’ll take out the trash!”

B: “Sure, I’ll do it.”

A just made an offer to B. B accepted the offer. To make this example easier, I added an explicit third element for the contract- the consideration, which is the fancy term for what you get for entering into the contract. In this case, the consideration was taking out the trash. Now, and this may be hard to believe, this is a legally enforceable contract. If B does not go to the store and get some milk, then A can take B’s sorry butt to court. Now, in the real world, this wouldn’t be a legal case for many reasons (de minimis non curat lex, which is Latin for “It’s cheaper to just buy the dang milk already than hire an attorney”), but the principle applies. And you see this when it comes to bigger matters- famously, the Texaco/Pennzoil matter was a $9 billion dollar oral contract. Loose lips might not sink ships, but an oral contract could be worth BEEEELLLEEEEONS.


If someone reneges on a “promise” made to you, they very well might be breaching an oral contract. So, if you can use oral contracts, why are so very many contracts written? And there are several reasons for this:

1. Some contracts must be written. There is something called the Statute of Frauds which requires certain kinds of contracts to be in writing. The most common example is for the sale of real property.


2. Parol evidence rule. No, this isn’t about prisoners getting out early; instead, it’s a rule that prevents people that have written contracts from offering extraneous “oral” information. Often, this is also included in the contract itself (a merger clause, which basically says, “This is the contract, the whole contract, and anyone that says anything else is a LYING LIAR!”).

3. Lying liars. The advantage of putting something in writing is, well, it’s in writing. Oral contracts can be “proven” in a number of ways- by other witnesses to it, or by the fact that one or both parties acted according to the oral contract. But if one party say, “Yep,” and the other party says, “Nope,” then it becomes a very difficult issue.


4. Complexity. Let’s face it; contracts usually contain many provisions; most of those are for lawyers to feel good about themselves, but many of them are required because life is complex. You can’t make a detailed oral contract.

So no, you don’t have to get it in writing. But if it matters, you probably should. And if someone is saying stuff about a written contract .... well, get that in writing.


2. “Can I sue Taco Bell for false advertisement? Their new “Naked Chicken Chalupa” isn’t naked (the chicken is breaded) or a Chalupa (there’s no choice of beef, chicken or steak filing). I mean it still tasted good, and I got 3 to be sure, but it’s not what it’s been named.” From Mr. umataro42.

Well, you can always sue Taco Bell for wrecking your colon, but that’s not what you asked. As a general matter, there are federal and state statutes that deal with Unfair and Deceptive Trade Practices, and those are very much the new “hotness” for some litigators. Suing Greek Yogurt for being neither Greek nor Healthy ... perhaps not even yogurt? Anyway, for this particular case, I would recommend either a) consulting an attorney if you wish to bring this suit, or b) simply being thankful that you survived a Taco Bell meal.


That said, I have difficulty seeing this lawsuit. There is little to nothing deceptive about this product; read as a whole, and as advertised, the “naked chicken” does not refer to any breading or lack thereof on the chicken, but is marketing for the fact that you are taking a “fast food dare” and that the chicken is the chalupa; the chicken itself is the taco/burrito/chalupa wrap.

I think any judge would likely dismiss the action on the principle of omnes relinquite spes, o vos intrantes, or, roughly translated, “You ate at Taco Bell; you get what you deserve.”


3. “Totally hypothetical scenario: Someone kills Hitler in modern day America. Would his survivors:

A: declare martial law and shoot everyone who is out after 3pm?

B: have the person arrested and offer them a fair trial?

C: sue the shit out of them in civvy for damages to Hitler’s brand name?

D: get a foreign dictator to invite them on a cruise and then nobody ever hears from them again, in which case:

  • Did foreign dictator go along with the plan, or
  • Did he secret the culprit off to a training facility for further - er, diplomatic missions?” From Mr. k2b.

Oh.... well, I assume that this has some sort of modern-day relevance, and by “Hitler,” you are actually asking a question about “Hippies.” That said, there are a few different approaches to the issues you have brought up-

Martial law isn’t really defined in our legal system; however, the Posse Comitatus act prevents federal armed forces from acting as domestic law enforcement. In addition, the Constitution requires an act of Congress to suspend habeas corpus.


The issue I really see here is between (B) and (C), which is a distinction we don’t often see, or, usually, just ignored. So a bit of background-

Most people are familiar with crimes. And, therefore, criminal law. You murder someone. You punch someone. The police charge you. You get thrown in the pokey.


Most people are familiar with tort law. Something something negligence something something. For example, the doctor wasn’t paying attention, forgot to take some tools out before he closed you up in surgery (he was negligent!), and you sue him. For money.

Criminal law = pokey.

Civil law (torts) = money.

What many people are less familiar with is the overlap of Criminal Law and Torts. The “classic” crimes are also ... wait for it ... torts! That’s right. If someone murders you, you can totally sue him! Well ... um ... your estate can sue him. You get the point.


So ... why doesn’t this happen all the time? Why doesn’t Law & Order start with the following:

In the criminal justice system, the people are represented by three separate yet equally important groups: the police, who investigate crime; the district attorneys, who prosecute the offenders; and the ambulance chasers, who sue the HELL out of the perps for cash money. These are their stories.


And the simple answer is that it does happen, some of the time. Remember OJ? I know you do- after all, last year was the Juice-enning. Critically acclaimed doc. Critically acclaimed miniseries. Heck, if OJ had known he’d be this popular, he might have killed more people! Anyway, if you think back, you might remember that-

A. OJ was acquitted in a criminal trial.

B. OJ was found liable in a civil trial. (Was sued).

So why is OJ the exception, and not the rule? The answer to this, as it is to almost everything in the law, is simple- money. The vast majority of criminals don’t have it. Heck, if they did have some money, they probably won’t have it after spending it on defense counsel. As every attorney will tell you- you can’t squeeze blood from a stone, and most of them have tried.


And that’s the answer. Most criminals could be sued; there is a category of intentional torts that this would fall under. It’s just ... not worth it.

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