Monica Yant Kinney: Franklin Square ice cream deal disputed

Ian MacFarlane won't go broke over losing the right to sell ice cream at Franklin Square.

But when a business deal goes sour because one man believes another man didn't honor his word, it's faith that's at stake.

What's the value of a handshake in 2008? What's an oral promise worth these days, anyway?

And does a moment lose meaning if only one party remembers it?

MacFarlane and his wife, Rebeca, own Lix Ice Cream and Cafe Bravo in the Bourse. Sweets and stimulants have given them a nice life.

In late 2005, MacFarlane pitched the family business to Historic Philadelphia Inc., which was about to relaunch Franklin Square as a park after a $6.5 million makeover. Surely the city's newest family attraction, featuring mini-golf and a carousel, would offer treats to eat.

"When Franklin Square opened," park spokeswoman Cari Feiler Bender says, "obviously there was a limited pool of people willing to take that ride with us. It was a risk. Everyone was pleased [MacFarlane] came on board."

And pleased everyone stayed, giving MacFarlane (technically, his wife ran the cart) a second one-year contract in 2007.

Seeing a future in Fudgesicles, MacFarlane pushed park administrators for a long-term commitment. He even scribbled his intention on his contract.

That Historic Philadelphia's operations director, Steve Rosenberg, wouldn't put a plan in writing isn't disputed. What happened next is.

"He shook my hand and said: 'This is it. This is the deal. You have my word. You're going to be here as long as we're here.' "

MacFarlane, 71, recalls the palm-pressing vividly. And why not? What's more timeless than a businessman's giving another his pledge?

If only both had heard it.

"Steve Rosenberg never, ever promised anything verbally," Bender says. "There was no guarantee."

Despite growing business - MacFarlane estimates he sold $50,000 worth of ice cream cones last year - his ride ended last month.

Franklin Square's hot-dog vendor was also dumped. The original risk-takers had served their purpose.

"They're trying to streamline the operations to have one vendor do everything," Bender explains. "They hope to have a permanent food structure. They're trying to upgrade, take it to the next level."

MacFarlane bristles at the suggestion that he lost a contract over "little things," such as whether his employees sometimes forgot to wear their uniforms or took cell-phone calls while manning the cart.

"They're covering their heinies," he says, "to make us look like nickel-and-dime, two-bit players."

Because who but a naive old man would believe what he heard?

"There's nothing old-fashioned about feeling misled," insists Eleanor Myers, a Temple University law professor of ethics and contracts. "It does matter."

Legally, Myers says, oral agreements can be just as binding as written ones.

And if relying on a promise cost a person money - MacFarlane now owns $10,000 worth of ice cream carts; any takers? - he could be entitled to reimbursement.

As an experiment while MacFarlane and I debate whether he's living in a "bygone era," he asks a Bourse custodian whether it's safe to take a handshake seriously.

"Not anymore," she says, pushing a broom. "It's a shame."

Across the table, the man still wearing his "Franklin Square Park Staff" sweatshirt shakes his head.

"I'm no saint," MacFarlane admits, but "when I shake someone's hand, there's no backing out. No sleaze, no wiggle room."

"A shake," he says, "is a shake."

Except when it's not.

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