Legal Briefing - Santa better watch out: He can be sued

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Dear John, I was talking with my 5-year-old the other day about Santa. I asked her what would happen if he did not come this year. She replied that she would have him thrown in jail. We both laughed, but it got me wondering. Are there any legal issues regarding Santa?

Sincerely,

Santa's Helper, Suzie's Mom

There are many local, state, federal and probably international law issues dealing with Santa. Off the top of my head, I can name trademark, copyright, identity appropriation, postal regulation, contract, customs and immigration, taxation, food safety, corporate formation, service of process and animal control as areas of the law Santa needs to be concerned with.

However, because Santa is mostly about children, I will focus on that.

As far as I know, Santa runs the risk of arrest only for trespass, burglary and theft of cookies. He has a pretty good defense for that, consent. If Santa knows who is naughty, nice, sleeping or awake, he probably knows where he is welcome and where he is not.

Suzie's plan to have him arrested won't work if he comes, but she wants to arrest him if he does not come. I suppose, there is an argument that some of the sweaters he brings are crimes against humanity.

Santa does expose himself to civil liability for breach of contract if he fails to honor the terms of his contract. Contracts require a few things to be enforceable: an offer, an acceptance and consideration.

Each party also has to have intent to be bound by the contract. Basically, both parties need to promise something in exchange for the other party's promise and intend to be bound to keep their promise.

It isn't necessarily true that Santa has the same contract with each child. However, the basic contract appears to be, "gifts in exchange for belief with conditions on the quantity and quality of the gifts depending on the naughtiness or niceness of the child."

There may be other terms, such as parental income or behavioral standards that influence the contract, but those seem to be largely implied.

Santa is known for his winking and nodding, but what about his finger-crossing? By that, can Santa claim he did not intend to be bound?

Any court would have to look at the reasonable belief of the parties to determine that. If Santa wants to show that he did not intend to be bound, he would have to prove that it was unreasonable for the child to believe that a contract existed.

Santa's media campaign: live action, Claymation and animation, would make this argument fail. Santa has a long history of contracting with children.

Another argument Santa may make is he has chosen not to contract with a particular child. His past performance will probably be examined for this. Did he ever deliver gifts to this child in prior years? The nature of the gifts would also be looked at.

Santa would reserve the right to show belief and behavioral factors influencing his decision. His history of contracting with a multitude of kids of every disposition may make his argument suspect.

Santa may argue that because children are not able to enter into contracts, he cannot be bound by any contracts he makes with a child. Unfortunately, the law is not on Santa's side here either.

An interesting thing about contracts with minors is that the child may not be bound by a contract due to incapacity to contract, but an adult who contracts with a minor may still be bound. This is one reason never to offer to take a child somewhere or give them something in exchange for performance of task: you may still have to perform your end of the bargain, even if the child breaches the contract.

Santa may claim it was not him who actually contracted with the child. He would assert that an adult conspiracy cooked up his obligation to deliver gifts.

Santa would have a difficult time with this argument. He is known for having elves assist him with production and quality control, utilizing impersonators at malls for photos and gift idea reconnaissance and an army of public relations venues to perpetuate his fame. It would not be unreasonable to believe that Santa would not have agents responsible for assisting him with shipping and delivery of his products.

This utilization of agents is sometimes referred to as "the spirit" of Santa, Giving, Christmas or many other terms.

Finally, it must be said that Santa probably has more than one elf attorney in his employ. These barrister elves have had centuries to examine the law and think of ways to protect Santa against litigation. No doubt, they have come to the conclusion that the image and reputation of Santa would be harmed by litigation.

This must be why one of Santa's slogan's is, "Peace on Earth, Good Will to all." It is clear that good will is a critical element of his image. He, more than most, knows the fragility of branding and won't jeopardize it.

John Hartzell is a practicing Walla Walla attorney. No attorney-client relationship is established via this column, which is for educational purposes only and is not intended as legal advice. Have a question? Ask John at askjohn@wwub.com.

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