Carlill v.

Carbolic
Smoke ball co.
[1893] 1 QB 256
By- Saniya Dogra
Table of contents
S
NO TOPIC
.

01 Identifying the parties

02 Facts of the case

03 Issued raised

04 Analysis

05 The appeal

06 Judgment

07 Relevant ICA section

08 Conclusion
 Identifying the
01 parties
Plaintiff – Louisa Carlill

Defendant – Carbolic smoke ball company

Coram – 3 judge-bench consisting of Justice Lindley, Justice Bowen, Justice

Smith

Decided on – 7th December 1892

02Facts of the case
• The defendants are the proprietors and vendors of a medical
preparation called the “The Carbolic Smoke Ball” It claimed to be a
cure for influenza and many other diseases.

• For context 1889-1895: Influenza was a widespread pandemic that is

estimated to have killed 1 million people.

• The smoke ball was a rubber ball with a tube fixed to its opening. The
ball is filled with Carbolic acid (Phenol). The tube is supposed to be
inserted in one of your nostrils and the bottom part of the rubber ball
is to be pressed. The gas enters your respiratory tract and flushes out
al the viruses.
• They inserted an advertisement in the Pall Mall Gazette of Nov 13, 1891, and in
other newspapers: “100£, the reward will be paid by carbolic smoke ball company
to any person who contracts the increasing epidemic influenza, colds, or any other
disease after having used the ball three times daily for two weeks according to
the printed directions supplied with each ball. 1000£ is deposited with the Alliance
Bank, Regent Street, showing our sincerity in the matter.

• The plaintiff, a lady, on the faith of this advertisement, bought one of the balls at
the chemist’s and used it as directed, thrice a day, from Nov 20, 1891, to Jan 17,
1892. she subsequently contracted influenza.

• Thereupon, her husband wrote a letter for her to the defendants, stating what had
happened, and asking for £100 as promised in the advertisement. They refused and
this action was brought in court before Hawkins J. and a special jury. Arguments
were heard on both sides and finally, the verdict was given in favor of Mrs. Carlill.

• The defendants appealed.

 Issues
03 raised
• Whether the advertisement published by the company was a
promise or a mere puff.

• Whether there was a formation of a binding contract

between the parties.

• Whether the plaintiff was required to communicate her

acceptance of the offer to the defendant.

• Whether the plaintiff provided a valid consideration in return

for the 100£ offered by the defendant.
 04 Analysis
Defendant’s defence
• The defendant argues that the advertisement was a mere puff and not a promise.
The offer didn’t have any binding impact in order to form a valid contract. their
reasoning was based on the fact that the words used in the advertisement were too
vague to form a contract.

• They argued that there was no specific time limit and in addition to this, they said
that there were no means of ascertaining the use of the smoke ball. For example-
anyone might come forward and claim to have used the smokeball for a Fortnite, and
it would be impossible to disprove it, a person might claim, influenza ten years after
using the remedy
• Thirdly, there was no contract because in order to form a valid contract requires
communication of acceptance of the offer. In this case, Carlill didn’t send any
sort of acceptance with regard to the offer either expressly or impliedly or
through any performance of an overt act

• There was no consideration from the plaintiff as for the 100£ made by them.

• If there were to be any contract in this case, it would be a ‘wagering’ contract-

which was void under the statute at the time.

• Thus, according to them, it is clear that the advertisement was just a marketing
strategy, and the company didn’t have any intention to form any sort of a
contract.
Plaintiff’s Claim
Plaintiff sued, arguing that there was a contract between the parties, based on the
company’s advertisement and her reliance on it in purchasing and using the smoke ball. It
was argued that:

● The promise was not vague and also the construction of the offer was such that it was
clear that in case the product wasn’t effective the company would reward a
certain amount. Also in order to facilitate the same, the company had deposited a
large amount in the Alliance bank account. Thus, their act of depositing the amount
is proof of their intention to actually form an agreement from one side.

● The plaintiffs also proved that there was a consideration in the form of the money
paid to buy the carbolic smoke ball.

● The advertisement was not an empty boast. In fact, it characterised most of the
essentials that attribute a contract and more precisely a Unilateral Contract. Thus,
the company has to fulfil its part of the bargain.
● .
 05 The Appeal
The English Court of Appeals held that the contract was a binding one. Carlill was
successful. The reasoning provided by the judges are as follows:

In a nutshell, Justice Lindley stated that the advertisement shall be treated as an express
promise. According to this promise, anyone who contracts the flu despite the preventive
capacity of the smoke ball as claimed by the company will be paid 100 pounds provided that
the ball is utilized as per the directions (three times daily for 2 weeks).

Elaborating his reasoning as follows:

• Justice Lindley said that the advertisement was not an empty boast or a mere puff
because of the use of a particular statement that is “1000 £ is deposited with the
Alliance Bank, showing our sincerity in the matter”. This statement makes it evident that
the company was sincere enough while offering the reward in the first place.
• This is a unilateral offer that doesn’t require acceptance as it is made to the world
at large. It shall be treated as an offer to anyone who performs the conditions and anyone
who performs the specific condition (in this case using the smoke ball 3 times for 2 weeks)
accepts the offer. In other words, if the specific conditions are performed then it implies the
communication of acceptance of the offer.

• Justice Lindley also concluded that the advertisement is not vague. The words used to
construct the language of the advertisement can be construed as a promise. The words are
reasonably constructed to lead any potential consumer to believe that if they contracted
the flu even after using the smoke ball, they are entitled to 100 pounds.

• Lastly, Justice Lindley concluded that consideration did exist in this case mainly for 2
reasons. Firstly, the company received a benefit in the form of sales. Secondly, there is a
detriment involved which is the direct inconvenience caused to the consumer who uses
the smoke ball as per the conditions laid down in the advertisement. Thus, the performance
of the specified conditions constitutes consideration for the promise.
Justice Bowen also offered his reasoning. Bowen also agreed with Justice Lindley. His
reasoning can be summed up into 3 points.

• An offer made to the public at large can also ripen into a contract if anyone
fulfils the conditions of the contract. the fact that the company deposited 1000 pounds
in the bank for the purpose of the offer made by them implies their sincerity to fulfil their
part of the bargain in case their product fails to prevent the flu.

• There exists a valid consideration. Firstly, the company will profit from the sale of the
product. Secondly, performance implies their acceptance and establishes their
consideration.

• A specific notification of acceptance is not required in such situations.

Finally, Justice Smith went with the reasoning of Justice Bowen and Lindley (only disagreeing
with the acceptance concept) and dismissed the appeal unanimously. The plaintiff received
compensation of
100 £.
06 Judgment/Held
Mrs. Carlill was entitled to the reward. There was a unilateral contract comprising the
offer (by advertisement) of the Carbolic Smoke Ball company) and the acceptance (by
performance of conditions stated in the offer) by Mrs. Carlill.

• There was a valid offer :

a) Offers can be made to the world - the advertisement was a unilateral offer to
the entire world.
b) The language was not too vague to be enforced

• Although as a general rule communication of acceptance is required, in the

case of a unilateral offer like so, the offeror may dispense with the need for
notification of acceptance, and performance of specified acts will be considered
as acceptance of offer.
• This was not a mere sales puff (as evidenced, in part, by the statement that
the company had deposited £1,000 to demonstrate sincerity)

• There was consideration; the inconvenience suffered by Mrs. Carlill in

using the smokeball as directed was sufficient consideration. In addition,
the Carbolic Smoke Ball received the benefit of having people buy and
use the smoke ball by relying on the advertisement was a clear benefit to
them.
07Relevant ICA section
Acceptance by performing conditions, or receiving consideration.

“Performance of the conditions of a proposal, or the acceptance of any

Sectio consideration for a reciprocal promise which may be offered with a proposal
n8 is an acceptance of the proposal.”- Performance of the conditions of a
proposal, or the acceptance of any consideration for a reciprocal promise
which may be offered with a proposal, is an acceptance of the proposal.

Illustration:
B advertises that his dog is lost, and whoever brings the dog to his address
will be paid some amount of money, this such a case, not every person or
police who is willing to find the dog is supposed to sit down and write a
notice saying that they accept B’s proposal. No, as soon as they find the dog
they have performed the condition. The essence of the transaction is that the
dog should be found, in such case it doesn’t deem necessary that in order to
make the offer binding there should be any notification of acceptance.
 08 Conclusion
• In my view, the Carlill case is an important precedent that demonstrates the flexibility and
adaptability of contract law to changing social and economic circumstances.

• It also highlights the importance of clear and unambiguous language in the formation of
contracts and the need for parties to be aware of the legal implications of their
actions.

• If we were to see this case in view of pure law it does seem that the court's decision may
have been influenced by the public interest in promoting public health and safety,
rather than a strict application of contract law principles. But it seems to be the right
thing to do considering the situation during those times.

• Overall, I believe that the decision in Carlill was just and fair and that it continues to provide
a valuable reference point for contract law today and has been an important tool for
businesses and individuals alike, helping clarify the legal rights and obligations of
parties in contractual relationships.
 Bibliography

• Information:
a) Contract & specific relief – Avtar Singh.
b) Quackery and Contract Law: The Case of
the Carbolic Smoke Ball - A. W. B.
Simpson.

• Pictures:
a) p349,372,388 (Quackery and Contract
Law: The Case of the Carbolic Smoke
Ball - A. W. B. Simpson )