latest post 25/11/2023
When ‘Tweets’ Turn into Contracts: Examining Elon Musk’s Tweet in Light of UK Contract Law
Malak Sheth and Vasu Taneja
The advent of the internet and social media has revolutionised the way people communicate and conduct their business. This shift has prompted inquiries into how traditional rules of contract law, specifically those governing offer and acceptance, apply to interactions on these online platforms. The focus here is on ‘Twitter’. While the platform recently has been rebranded ‘X’, for the sake of uniformity, it will be referred to as ‘Twitter’.
One such dilemma emerged when Ryan Leslie, the rapper, in 2010 ‘Tweeted’ what seemed to be an offer of a reward for the safe return of his lost MacBook. Mr. Augstein relied on the Tweet to claim the reward for the safe return of Leslie’s laptop. The District Court of New York rejected Leslie’s claim that it was an advertisement and held the Tweeted to be a public offer meant to induce performance from members of the public and thus was enforceable.
Recently, in August 2023, Elon Musk Tweeted:
This led to a deluge of replies from people. Such an overwhelming response raises the issue of whether Twitter can be taken to court by anyone, or for that matter everyone, who relied on the Tweet in order to enforce the express promise made by Musk. The unambiguous nature of Leslie’s Tweet allowed a binding contract to arise on the performance of certain acts by the plaintiff to the defendant’s benefit. However, in Musk’s case, the vague terms used in the Tweet raise perplexing questions: can it be construed as a general offer to the world at large, does any consideration flow from the plaintiff to legally bind Twitter to the terms of the contract, is the Tweet is an invitation to offer and, if not, can Twitter demand the fulfilment of certain additional conditions over and above what was stated in the offer to hold their end of the bargain?
This paper analyses the Tweet made by Musk in light of Carlill v. Carbolic Smoke Ball Company which changed the landscape of responsibility in cases of communication to the world at large wherein ‘it is understood by the public as an offer to be acted upon’. In Carlill, such an offer to the world at large was held to have given rise to a unilateral contract with all those who fulfilled the terms of the contract. This paper analyses whether the traditional principles of contract law can be extended to the digital realm where every communication is a communication with the world at large: (a) Is the Tweet a unilateral contract, offer or an invitation to offer; (b) Does the Tweet fall within the ambit of puffery; and (c) If the same is nudum pactum or lacks consideration?
2. Offer, invitation to offer or a unilateral contract
In Carlill, a reward of £100 was promised to any person who contracted influenza after having used the ball three times daily for two weeks according to certain directions. The plaintiff nevertheless contracted influenza but was refused the reward. The court held that the advertisement was an offer to pay £100 to those who performed those conditions, and the performance of the conditions was the acceptance of the offer.
The question that now arises is if parallels can be drawn between the facts of Carlill and the Tweet made by Musk to hold that he made an express promise to the world at large and had the intention of entering into a legal relationship with those who fulfilled the terms laid out in the Tweet? To answer this question, it would be relevant to differentiate offers from generic proposals or invitations (invitatio ad offerendum).
An offer is an expression of willingness to enter into a contract that is to become binding on the acceptance of the same, however, an invitation to treat is different from an offer for two main reasons. Firstly, it presents a scope of further bargaining, for example, when a house is put up for auction. Secondly, it allows the advertiser to ascertain that the other party can (financially or otherwise) perform his obligations under any contract that may result.
In Carlill, a unilateral contract emerged since it was executed by the Company and remained to be executory from the side of the other party. This bound the Carbolic Smoke Ball Company to the terms of their advertisement because neither of the aforementioned conditions of the invitation to treat were applicable to the offer made by it. The reward of £100 was ascertained and was to be fulfilled by the company on conditions that were already prescribed in the advertisement and therefore no scope for any bargaining remained. Nonetheless, in the present case, Musk mentions no conditions to be fulfilled or any reward in unambiguous terms. Having said that, whether the ‘no limit’ proviso can be construed to have created a unilateral contract by eliminating any negotiation upon the terms of the reimbursement of the legal bill, is something debatable and for the court to decide if and when a case is filed. Yet, Musk can be held liable if the Tweet is regarded as an offer of a unilateral contract based on the objective test of agreement. The test says that if his Tweet was such that it induced a reasonable offeree to believe that he intended to be bound, even though Musk had no such intention. Similar to Carlill, Musk would not be able to claim the defence that the Tweet was an ‘empty boast’ that he is under no obligation to fulfil since from the nature of the Tweet, it can be said that it was meant to be read by the public and acted upon. This is also evident from the response of the public who as a reply to the Tweet recounted their personal experiences of how they were dismissed by their employers for their activity on Twitter.
3. A genuine offer or a mere puffery?
In Carlill, one of the defences used by the company was that the claim made in the advertisement was a mere puff and thus this section aims to analyse whether Musk could use such a defence. Puffery is any vague statement boasting the appeal of a service or product that, because of its vagueness and unreliability, is immunised from regulation. The court in Carlill held that the claims made in the advertisement were not in the nature of puffery because of the explicit mention by the company that they had deposited £1000 with the Alliance Bank which showcased their genuine intentions. In the present case, if the extensive liability that Musk assumes for Twitter is in the nature of puffery, this is something that is to be determined by the court because of the difficulty in ascertaining his intentions solely through the Tweet. In Carlill, the express mention of the deposit of £1000 with the Alliance Bank made their intentions relatively unambiguous and thus ascertainable.
Conversely, the following factors would be relevant when ascertaining that the Tweet was not puffery. Firstly, the Tweet involves an express promise by Musk to the general public without any exaggerated claim about any product or service that it seeks to advertise. Secondly, the ‘reasonable objective person test’ could be applied to solve the quandary.  It should be evaluated whether a reasonable person would have understood the offer made by Musk to be an offer, rather than a mere puff. Musk’s position as the richest person in the world would have caused any reasonable person to presume that financing the legal bills of users would not be an undue financial burden on him, thus lending faith to the claims made in the Tweet. Further, if by the usage of the words ‘no limit,’ an intention to agree can be made out by a reasonable standard, the real but unexpressed state of Musk’s mind would become immaterial. His intention to enter into a contract and its reliability would be assumed and the defence of puffery would be denied.
4. How does it benefit Twitter?
Another defence taken by the company in the Carlill case was that the contract is nudum pactum or that it lacks consideration as no consideration moved from the plaintiff. The present case could face similar opposition. Thus, it would also be relevant to delineate what would amount to acceptance of the offer mentioned in the Tweet in the present case. The Court, in Carlill, ordained that in such contracts, the requirement of intimation of acceptance is waived and the performance of the required act suffices without any prior intimation of acceptance. Any person who seeks to hold Twitter up to its promise must perform the obligation of suing their employer once they have been treated unfairly based on their conduct on Twitter and this would amount to the acceptance of the offer.
Further, the performance of any positive act by the plaintiff towards the fulfilment of the conditions of the offer was itself considered to be enough to create consideration for the contract. Similarly, the act of suing the employer, relying on the fact that Twitter would fund the legal bill for the same, should be considered adequate to create consideration for a contract.
Moreover, in Carlill, the Court recognised the monetary gain that was likely to accrue to the defendants by the enhanced sale of the smoke balls because of the advertisement. Similarly, it would be worthwhile to estimate the benefit that is likely to accrue to Twitter by Musk’s Tweet. Recently, Musk acquired Twitter for USD 44 billion and he vowed to enhance free speech on Twitter at all costs. The Tweet enhances the reputation of Twitter as a crusader for free speech where its users can be compensated for their legal bills for actions against their employers if they intrude on their rights to ‘free speech’. Arguably, the Tweet gains even more significance following the launch of ‘Threads’, as a rival platform. Thus, the Tweet can be said to have garnered favourability amongst users for Twitter and could be considered as one of the considerations for the unilateral contract.
The foregoing analysis is familiar, except for its place of action in a virtual space. The article is a prescient warning that the traditional principles of law continue to apply despite a virtual realm. However, the conditions for applying these principles become more complex and controversial because the digital world is an open space. Digital platforms allows users to communicate freely and without forethought. Therefore, it becomes difficult to ascertain the exact intention of the user and whether they intended to communicate an offer or whether it was made in a light-spirited manner without the intention to attach any legal liabilities. Nevertheless, in light of a Canadian court interpreting an intention behind an emoji, people must exercise caution in how they conduct themselves in the digital realm.
 Third-year law students at the Rajiv Gandhi National University of Law, Punjab, India
  1 QB 256.
 Hugh Beale, Chitty on Contracts (32nd edn, Sweet & Maxwell 2017) 2-015.
 Carlill (n 2) 258.
 Alexander Simonson and Morris B. Holbrook, ‘Permissible Puffery Versus Actionable Warranty in Advertising and Salestalk: An Empirical Investigation’ (1993) 12(2) Journal of Public Policy & Marketing 216-218.
 Beale (n 4) [2-046].