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Contracts and Poker: Objective Manifestations vs. Subjective Intent

by Scott J. Burnham |  Published: May 10, 2017


At a tournament in my local casino, the dealer called the tournament director over to resolve a disputed play. The tournament director asked one of the parties, “Was it your intention to raise?” A tournament director should never ask that question. Let’s look at why.

Every law student is familiar with the case of Lucy v. Zehmer. Lucy and Zehmer were acquaintances in a small town in Virginia. Meeting by chance at a local watering hole, where they each had had a few drinks, Lucy said to Zehmer, “I bet you wouldn’t take $50,000 for your farm.” Zehmer replied, “Yes, I would too; you wouldn’t give fifty.” Lucy said he would and told Zehmer to write up an agreement to that effect, which Zehmer then did on the back of a handy restaurant check. When Lucy pressed him about completing the exchange, Zehmer began to realize that Lucy had taken the whole thing seriously. He protested that it was all just a joke, but Lucy showed he was serious when he took Zehmer to court, claiming breach of contract.

What does that have to do with tournament poker? When you enter a poker tournament, you are binding yourself to a contract with the casino. The contract includes the player’s promise to follow certain rules, often found in the Tournament Directors Association (TDA) Rules. In this column, I will look at those rules through the eyes of an expert in contract law. Hopefully that perspective will illuminate the rules and perhaps suggest changes that might improve them.

The lesson of Lucy v. Zehmer is that when it comes to the formation of a contract, the law cares only about your objective manifestations, not your subjective thoughts. Contract law does not care that Zehmer thought he was making a joke. It does not even care that Lucy thought Zehmer was serious. What it cares about is the opinion of a reasonable person who was aware of the objective manifestations of the parties in that situation. Would that person conclude from those manifestations that the parties were joking or serious?

In the case, Zehmer lost. The court found from the facts and circumstances that he appeared to have been acting seriously. In the TDA rules, the lesson of Lucy v. Zehmer pops up in many different places. Rule 42 reminds us, “It is the responsibility of players to make their intentions clear.” However, clear intentions may not be enough, for it must be remembered that poker, like contract law, doesn’t care about your actual intent. For example, a player new to casino poker who is used to home games or movies, might say something like, “I’ll see your bet, and raise you 300.” There is not much doubt that the player intended to raise. Yet because of the “one motion” rule of TDA Rule 42, we stop them at “see your bet,” which we translate to “call.”

The rule that new players seem most likely to violate is the “oversized chip rule.” If the betting level is 100-200, and a player puts out a single 500 chip, we don’t know whether their intention was to raise or to call. This bet is ambiguous, and TDA Rule 45 resolves the ambiguity by imputing an intent to the player – they intended to call unless they manifest a different intent.

Sometimes even experienced players are surprised when this rule is applied to completing a bet. Assume again the betting level is 100-200 and it is folded to the small blind, who tosses a 500 chip on top of his 100 chip. That is a call, even though the player protests, “But if I meant to call, I could have just put in a 100 chip.” That player needs to be politely reminded that the poker rules do not care what they meant to do.

The final situation we will look at where the rules look at objective manifestation even when it is clearly not the intent of the player comes up in Rule 56, which is aptly captioned “Over-Betting Expecting Change.”

Assume the betting level is 100-200 and a player raises to 525. Another player simultaneously puts out a 1,000 chip and a 25 chip and the dealer declares, “Raise.” The dealer is enforcing Rule 42, which states that one method of raising is “pushing out the full amount in one motion.” The player protests that he was only trying to make it easier for the dealer to make change. Rule 56 waffles a bit, stating that “All chips pushed out silently are at risk of being counted in the bet” rather than saying they are counted in the bet. Perhaps the reason for the waffling is that it might be unfair to hold the player to the rule when everyone knows that their intent was not to raise and no harm would be done by rescinding the action.

Can players manipulate the rule that we only look at objective manifestations? Of course. I will admit to having done it myself in a tournament where we were warned that the 5,000 chips looked confusingly similar to the 500 chips. A player raised to 1,000. Looking down at K-K, I tossed in a 500 chip and a 5,000 chip. I refrained from Hollywooding about the “mistake” I made, but the dealer nevertheless asked, “Was it your intention to raise?” I responded, “Does it matter?”

Is there room for discretion on the part of the tournament director in enforcing these rules? Of course, and that will be the subject of another column. Meanwhile, remember that in both poker and contracts, you must be careful with your objective manifestations. They are likely going to prevail over what is in your head. ♠

Scott J. Burnham is the retired Curley Professor of Commercial Law at Gonzaga Law School in Spokane, Washington. This column is adapted from his article, A Transactional Lawyer Looks at the Rules of Tournament Poker, which was published in Gaming Law Review and Economics. He can be contacted at