Making A Contract With Santa Claus
Key Contact: Claire Knowles
Author: Adam McGlynn
Let me guess. You have likely searched ‘Santa Breach of Contract’, ‘Can I Sue Santa?’, ‘Santa Where’s my Present?’, or one of a variety of similar phrases that I have flooded this article’s SEO with. And why might you search such a thing? Probably because you haven’t received a present from Santa this year and want to take legal action, or perhaps you are preparing your case in advance, anticipating that you are on the Naughty List this year. Either way, you are in the right place. Inspired by Netflix’s ‘Pepsi, where’s my jet?’, Santa has allowed me to take a break from my honorary position as Santa’s Solicitor to ponder the question: Can you sue Santa Claus if you don’t receive a present at Christmas?
The Claim Against Santa
If you are concerned that Santa might not simply ‘gift’ you a present this year, you will need to establish a contract with him. Despite what might come to mind, contracts do not always need to be signed or even written at all. In fact, a contract can potentially arise orally or by conduct. There is, therefore, the potential for a contract to already exist between Santa and each of us, however, I would always recommend putting contracts in writing for clarity and peace of mind.
Assuming a contract is established, the remedy for breach of contract would be financial compensation to put the present-less party in the position they would have been in had the contract been performed. Santa would, therefore, have to deliver a present or equivalent value, although the uncertainty surrounding the present’s value may cause issues, discussed below.
To establish a contract, we will need the key elements of offer, acceptance, and consideration, along with an intention to create legal relations and a couple more legal tests:
Santa’s Offer to the World
Those who have watched ‘Pepsi, Where’s my Jet?’ will be familiar with the concept of unilateral contracts being offered ‘to the world’. You may have never met Santa, but through your parents, popular media, and Santa’s representatives across the world, it is arguable that the offer has been communicated to the people of the world: if you are good this year, Santa will bring you a present. While this offer does not seem like a ‘joke’ in the same way as Leonard v PepsiCo, it could arguably be ‘mere puff’ (actual legal phrase), and not intended to create legal relations. However, Santa’s commitment to making a list, checking it twice, and performing his side of the bargain each year demonstrates an accepted degree of sincerity.
The difficulty with establishing a valid offer arises when considering the level of certainty of the offer as no specific presents are mentioned in Santa’s general offer. It is possible he could be bound to merely deliver ‘a present’, however, the contract would lack enforceability as the present could be anything, even something nominal like a lump of coal (or a peppercorn for those who might actually appreciate coal this year). Fortunately, there are ways to establish new offers which may be more clear and certain than Santa’s general offer.
Letters and Grottos
Santa has a very busy Christmas Eve, but he also keeps busy throughout the year answering Christmas letters and visiting grottos around the world. These are opportunities to contact Santa directly which can be used to clarify and update your contract with Santa. The important goal is getting a response from Santa where he either accepts an offer you have made or where he makes an offer that you can then accept.
Acceptance Through Conduct
An offer is only one side of the coin, the other is acceptance. Until both are established, there is no binding contract. Acceptance usually needs to be communicated to the offeror, however, some offers can simply be accepted by fulfilling the conditions of the offer. For example by trading in 7,000,000 Pepsi points or, in this case, by being good.
Acceptance through conduct will only be valid if it is clear that the conduct was done with the intention of accepting the offer, so, ironically, being good ‘for goodness sake’ wouldn’t count as accepting Santa’s offer. A clearer acceptance would be to tell Santa via letter or grotto conference that you intend to be (extra) good in exchange for the present(s) he will bring you. But is that promise enough?
For a valid contract, each party must provide something of value to the other, known as ‘consideration’. In Santa’s case, a present would certainly be something of value. Even something with minimal value like a peppercorn or a DVD of Grease 2 could be valid consideration as consideration promised by the parties does not need to be equivalent. For example, a contract to purchase a Lamborghini for £1 could be perfectly valid, although I have followed those online hyperlinks and have only seemed to acquire ransomware so far.
But is the promise of being good sufficient? One legal commentator in the US suggested that being good was an ‘illusionary’ promise as people are supposed to be good anyway. If there is one thing I love more than Christmas, it is
winning an argueme a good debate with my peers. I would argue that, while we are obligated to not break the law, there are no obligations on us to go beyond that and act in a way which society or Santa might consider good. Eating all the treats in the cupboard without sharing any with my family might be considered bad, but I haven’t been arrested for it yet.
So ‘good’ acts could have worth, but it is difficult to argue that Santa directly benefits from such goodness. Enter… cookies and milk. Saving the day as they so often do. Santa certainly benefits from these, at the time of present exchange no less, and so valid consideration can be achieved by leaving a plate of tasty treats out on Christmas Eve. Don’t worry if you run out of milk though as I have it on good authority that Santa appreciates a cold Guinness too.
Enforcement and Strategy
In summary, it is possible that Santa has made an offer to the world which can be accepted by being good and leaving him something tasty, creating a valid contract where Santa will owe you a present.
- Without clarity on the present itself, Santa retains full discretion, and being good still would not entitle you to demand any particular present. However, this could potentially be overcome be updating the contract with Santa directly.
- There is also the burden of proving that you were indeed good that year… against Santa… a being who literally knows if you’ve been bad or good.
- There are also the practical considerations of looking to enforce a breach of contract claim against Santa. If push comes to shove, Santa may have valuable assets in his workshop, but it would take a very brave bailiff to travel to the North Pole to seize them.
The terms of my conflict disclosure to Santa, as his solicitor, require my ultimate advice to be for you to ‘be good’. As such, for the boys and girls hoping to wake up to more than a peppercorn on Christmas day, remember to be good for one of the following reasons:
- For goodness’ sake; or
- As part of a binding contract you have entered into with Santa via letter or grotto conference.
For those who don’t want to leave the terms to chance, please find a template Christmas letter below.
DISCLAIMER: This document may not result in actual presents. Seek independent legal advice.
[Christmas Letter Agreement with Santa Pro-Forma (Offeror-Friendly)]
Strictly Private & Confidential
Santa Claus [DATE]
I write further to our correspondence last year on the subject of my being good. I was grateful to find that you delivered last year’s presents in a timely manner and in satisfactory condition. My compliments to the elves and seasons greetings to both you and Mrs Claus.
I am pleased to inform you that I have been well behaved so far this year. In particular, I have:
- [Accomplishments and Good Behaviour List]
This year, I have been enamoured with a variety of toys and/or sweets. In particular, I would like for you to deliver a selection of no less that [one] of the following presents to me, in a satisfactory condition, while I am asleep this coming Christmas Eve:
- [Presents List]
(together, referred to as the ‘Goods’).
In considerations for safe delivery of the Goods, I promise to make reasonable endeavours to be good for the remainder of this calendar year and to leave a glass of [milk] and plate of [cookies] out for you on Christmas Eve, along with a [carrot] for your reindeer.
The parties intend this letter to be legally binding.
It is important that you treat this offer as strictly confidential. You are permitted to discuss the proposal with your elves for the purposes of preparing and delivering the Goods provided that they are bound to keep it confidential too. You may also discuss the offer with your legal adviser, Adam McGlynn of Acuity Law, for the purpose of seeking legal advice.
This letter and all disputes or claims arising out of or in connection with it shall be governed by and construed in accordance with the law of England and Wales, and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim as the North Pole is too far away.
Please acknowledge receipt and acceptance by signing, dating, and returning the enclosed copy.
[NAME], [age] years’ old.
I, Santa Claus, warrant that I have made a list and checked it twice, finding you to be on the Nice List as at today’s date, and agree that I shall deliver the Goods to you on the above terms.
Signed ……………….. Date ………………..
If you require any assistance or support, don’t hesitate to get in touch with our employment team.