Puharic v Silverbond Enterprises Ltd (Rev 1)

An oral contract requires agreement, an intention to create legal relations, consideration, and sufficiently certain and complete terms. Discussions about possible incentives may remain an invitation to treat where important matters have not been agreed or verified. Playing may amount to acceptance by conduct only where a sufficiently clear offer capable of acceptance has first been made. A casino commission figure generated by an internal system does not itself create an entitlement to payment where the scheme operates only as a discretionary fund for incentives.

The claimant, an experienced high-stakes roulette player, sued the defendant casino for an alleged bespoke incentive of 0.9 per cent of roulette turnover. In the alternative, he claimed payment of commission recorded by the casino’s internal system under a default programme. The defendant denied any concluded agreement and maintained that accrued commission merely funded discretionary incentives. The issues were whether an offer had been made and accepted, whether any terms were sufficiently certain, and whether the commission record created a contractual right to payment.

1. The claim was dismissed. The claimant had been paid his winnings and was entitled to no further sum.
2. The legal requirements for an oral contract were uncontroversial: agreement, intention to create legal relations, consideration, and sufficiently certain and complete terms. The relevant discussions did not amount to a sufficiently clear offer. They concerned what the casino might be willing to offer, without verification of the claimant’s arrangements elsewhere or agreement on the essential structure of the incentive.
3. The court rejected both the pleaded case of matching changing terms at other casinos and the evidential case of a fixed 0.9 per cent turnover bonus. The Player Program Agreement was an internal document, was not an agreement with the claimant, and recorded a standard 0.8 per cent commission programme. That was inconsistent with the alleged bespoke agreement.
4. Starting to play roulette can in principle constitute acceptance by conduct, but only where a sufficiently clear offer capable of acceptance has been made. That threshold was not met. The court therefore did not need to determine acceptance further.
5. The court also rejected the alternative claim. The commission shown by the casino’s system generated a fund from which the casino could choose to provide incentives. It was not a sum to which the player was contractually entitled. The pleaded challenge to the exercise of any discretion was not pursued at trial and had not been properly explored in evidence or argument.
6. In assessing the oral evidence, the court applied the caution that human memory is fallible, while considering recollection alongside the documentary and surrounding evidence and remaining sensitive to the informal, non-commercial context of the claimant’s gambling.