Miles Kington: Why are Christmas cracker jokes not funny?

We dutifully read out the jokes, but not one got a laugh. Can I sue the makers for failure to amuse?

Christmas is never really trouble-free, is it? So today I am bringing you a post-Christmas advice service to help you clear up all those problems caused by the season of peacefulness and joy. Here is top lawyer Adam Marzipan to sort it all out for you.

Dear Mr Marzipan,

My family and I pulled at least a dozen Christmas crackers during our Christmas dinner, disgorging the usual contents of paper hats, trinkets and jokes. We dutifully read out the jokes, but not one got a laugh. This has happened every year I can remember. I must have spent hundreds of pounds on crackers over the years, and never got a laugh in return. I am beginning to resent all that lost money. Can I sue the makers for failure to amuse?

Top lawyer Adam Marzipan writes: That all depends on whether there is an unwritten contract to amuse built into the purchase of a cracker.

There are some contexts in which a joke always gets a laugh, whether it is funny or not. If the Queen makes a joke, for instance. Or if a High Court judge makes a joke, everyone in court laughs. Indeed, if a High Court judge only seems to be making a joke, or if a High Court judge makes what seems to be an ordinary remark, and then laughs, and we suddenly realise he has made what he thought was a joke, then we all laugh. There is no compulsion to laugh. A High Court judge cannot sue us for not laughing. Yet he can punish us in other ways, so the act of laughter takes place.

With a Christmas cracker, matters are different. We owe no deference to a cracker. A cracker has to work for its laughs. So, you may say, does a comedian. And that is true. A comedian is paid to make us laugh. That is his function. So if a comedian comes on stage and fails to amuse us, then he is failing his contract. On the other hand, a comedian can try to rescue the situation by chivvying the audience. If a comedian makes a joke, and people do not laugh, he can, as it were, heckle them by saying: "Come on, try to keep up", or "Not very quick tonight, are we?", thus turning the blame on the audience.

I remember when Ronnie Scott, the owner of the well-known jazz club, was doing his routine and not getting laughs, he would chide the audience by saying: "These are the jokes, ladies and gentlemen, these are the jokes!", which would often soften his listeners and change their mood.

This course of action is not open to a Christmas cracker. Unlike a comedian, a cracker cannot gauge audience reaction. The best it can do is disgorge its pre-prepared joke and hope for the best. But the question here is whether there is any undertaking on the part of the cracker-maker to amuse. Does the box of crackers contain a promise to make you laugh? Does it say: "This box of crackers contains jokes which will make you laugh."? Not if the cracker-maker has any sense. Yes, it may say: "These crackers contain jokes", but that in itself is not a guarantee of amusement.

Even if it did promise to amuse you, that also might not be enough in law. May I remind you of the private prosecution taken out by a reader against the publishers of the author Jeffrey Archer? On the jacket of one of Archer's books, the blurb had described the novel as being "a thrill a minute", and that "the twists and turns would leave you gasping". The reader claimed that this was a misrepresentation of the goods, and that there was barely a thrill an hour. Moreover, that the twists and turns had left him confused and yawning, and he wished to be reimbursed.

Now, the sum involved was paltry, but, if the reader had won his case, this would have opened the floodgates to a host of other claims, and the publishers fought it tooth and nail, till it was settled out of court. Many in the legal profession thought this was a shame as it would have settled once and for all whether a claim actually does constitute a claim, or whether a claim can merely be a boast. One is reminded in this context of the case of Queen v Prendergast...

Miles Kington writes: Well, that will teach me to hire a lawyer to handle things. Mr Marzipan has now been fired, though too late for today, I'm afraid. Sorry about that. Back to normal tomorrow.