I can take no credit for this awesome presentation. Lately I’ve been lamenting the tendency of people and companies to want to get everything for free (hence this service, created two years ago), and then I came across this today thanks to my friend Matthew Ebel. Solid, solid advice for creatives and creative entrepreneurs out there from Mike Monteiro of Mule Design: Fuck You, Pay Me.
It has a bit of an overly long intro music and graphics section at first, but stick with it – it’s so good I’m embedding instead of linking or paraphrasing.
For some of us, tweeting is more than just updating our friends as to what we put on our turkey sandwiches for lunch or how far we’re forced to walk from our cars to Starbucks. Twitter is a powerful tool, and amongst other things, can be used as a medium for business negotiation. And what else is more centric to business than contracts?
Most of us make contracts on a daily basis without even knowing it. If that mooching friend of yours says, “Can I bum a cigarette, and I’ll get you back when I buy my next pack,” she’s making an offer. If you give in once again to her moochiness, you just accepted her offer and made a contract. It’s that easy.
In social media, many of the offers that are made, accepted or rejected are communicated by way of the tools we use so very often, such as Twitter, Facebook, LinkedIn, etc. Just because it involves a keyboard and Twitter, not pen and paper, does not mean that the deals you make aren’t valid.
So, as you probably know by now if you are reading this post, there are but three types of tweets: general tweets, tweets to others that can be seen by all, and direct messages visible only to parties between whom the messages are being exchanged. I will briefly highlight how each of these forms can be construed as an offer or acceptance.
Generally speaking, a tweet that is directed to no one cannot be construed as an offer. In contracts, there are basically three broad categories under which contracts fall: sale of goods, sale of property, and services.
While the ins and outs of how offers are made and accepted differ between these three categories, all you need to know is that there’s really only one way a general tweet to the world can be construed as an offer, and that is if you, in a clear, definite and explicit manner, leaving nothing open to further negotiation, make known your position to render service or exchange goods. This is akin to an advertisement, which in most cases is not binding for the reasons stated previously.
If you tweet, “selling my unlocked iPhone 3Gs for cheap because #AT&T blows, DM me if interested,” you haven’t made an offer that someone can just accept, forever locking you into selling your iPhone. You’ve merely advertised your intent to negotiate or barter. However, if you were to say, “I have 1 iPhone 3GS new, still in original packaging, and I will sell for $99 U.S. to the first person who DMs me before 4pm” you have made an offer. The first person to comply with that offer in accordance with your terms has rightfully accepted, and you can kiss your iPhone goodbye (at least legally).
Point is, you don’t really have to worry about your general tweets being construed as binding offers unless you are so clear that nothing would be left open to negotiation if someone complied with your terms.
TWEETS TO OTHERS/DIRECT MESSAGING:
This is where the bulk of your contracting is likely to take place. Unlike general tweets, when you extend an offer to someone or a group of people specifically, your offer is significantly more viable, and can be taken more seriously by the person(s) to whom you extend your tweet. We’re no longer in the realm of advertisements, kiddies.
Let’s say you notice that a fellow blogger or social media personality tweet that she really could use a hand improving her site design. Proud of yourself for remembering that her tweet doesn’t constitute an offer, you reply “hey @_____, I like some of your design elements; check out some of my work (insert link to work).”
If all goes to plan, for argument’s sake let’s say she sends you a direct message saying, “Let’s talk shop…what would your rate be for the redesign?” This, too, is not an offer. It functions more as a price inquiry. If you respond in a way that reflects your intent to render your services to her, perhaps saying, “I think I could do the whole project for $1,000 start to finish,” that IS an offer.
At this point, things get a little sticky with the law. Though there are quite a few rules on the issue, unless you revoke the offer directly or indirectly, she then has the right to accept your offer. The exact wording isn’t so important, so long as she makes clear her intent to reasonably accept your offer. If she does, you have a contract.
If you’re thinking that you can play off your offer and her acceptance like it was meant to be a joke, or that you weren’t serious, think again: in the good old days, the “meeting of the minds,” or each party’s intent to contract mattered. Today, the communications you exchange with her are as good as ink on the paper with signatures at the bottom, according to the objective theory of contracts.
The examples provided aren’t to be taken as God’s truth, and the only situation in which one might contract with another. You could sell off 500 acres of land in the same manner, or trade a mold of Robert Plant’s unmentionables for an autographed poster of Lady Gaga. The courts won’t care how absurd you think the exchange might be. What counts is that one person offers, the other accepts, and both parties offer a consideration (I give you the Robert Plant mold, you give me your signed poster).
With all that swirling around in your noggin, here are a couple quick things to keep in mind as you go about your lives on Twitter (or anywhere else for that matter):
1. A general tweet may usually not be construed as an offer; rather, it tends to function like an advertisement, unless the terms are so clear, definite and explicit that nothing is left open to negotiation.
2. Tweets are entirely viable means for communicating an intent to buy or sell goods or property, or render services; if an offer is made by one person, and accepted by another, then you probably have a legally binding contract that can be enforced. If either of you breaches it, the non-breaching party has the right to file a suit against you.
3. Generally speaking, once a contract has been formed, if one of you wants out….tough luck. Your unspoken intent won’t matter where there are actual expressions reflecting your intent to contract.
4. Contract law isn’t intended to stick it to the breaching party, meaning you aren’t going to get punitive (punishment) damages for someone breaching a contract. But, in the case of our website designer above, if the offeree (person who may accept the offer) can demonstrate that the next highest bid for a job like that you would have done would cost $1800, the court might very well order you to pay the difference.
5. Do yourself a favor and act with integrity and character. Nobody wants to endure a legal battle. Don’t take negotiations in a joking manner, and honor your word. Because unless you’re clinically crazy or under the age of 18, the court just might enforce that contract you didn’t take seriously, and then you’re out whatever damages you’ve caused to the person with whom you contracted…and a reputation.
Triston McIntyre is a former Uptown Uncorked associate, now studying law in Maryland. He may be popping in from time to time to share what he learns with us as relates to social media. You can find out more about him under the Company menu above.
Tonight’s episode of Topics on Fire will center around Government 2.0 and what it means for social media, technology and the nation under the new President-elect, Barack Obama. There are inherent legal and security concerns with Government 2.0 implementation and use, as well as issues with how to fit technology, social media and transparency into the existing sluggish bureaucratic structure.