Carlill v. The Carbolic Smoke Ball Company.
The case of Carlill v. The Carbolic Smoke Ball Company, centred around an advertisement which was placed in the Pall Mall Gazette on November 13, 1891. The advertisement was entered by The Carbolic Smoke Ball Company and was promoting a “medical preparation”1 which the company had developed, called the Carbolic Smoke Ball. The advertisement clamed that “During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventatives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball”.2 The advertisement went on to inform the reader that the Carbolic Smoke Ball company offered “£100 pound reward will be paid to any person who contracts the increasing epidemic influenza, colds or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. £1,000 is deposited with the Alliance Bank, Regent Street, shewing our sincerity in the matter”3 After reading the advertisement, Mrs Carlill purchased a Carbolic Smoke Ball and it is stated that she “used the preparation as directed, three times a day between November 20, 1891 to January 17, 1892, when she was attacked by influenza” 4 Following the attack of influenza, Mrs Carlill attempted to claim the £100 reward which had been offered to anyone who “contracts the increasing epidemic influenza” as she had. Mrs Carlill was however unsuccessful in claiming her reward and on the advice of Mr. Carlill her husband, and also solicitor, she set about enforcing the terms of the contract, which she believed she had entered with the Carbolic Smoke Ball Company. This mission resulted in Mrs Carlill having to seek the assistance of the Courts. The case was brought before the courts and the questions which the Judges were asked to decide on was;- did the advertisement constitute a contract or was it merely sales puffery or a boast? The arguments which were put forward by the defendant were that “the facts show that there was no binding contract between the parties.”5 It was also argued that the advertisement did not constitute an offer but was merely an invitation to treat, as at no time was it ever intended to be a legally binding offer, and the advertisement itself was to vague to be the basis of a contract, but was just mere sales puffery. It was further argued that “In order to make a contract by fulfillment of a condition, there must either be a communication of intention to accept the offer, or there must be the performance of some overt act. The mere doing an act in private will not be enough.” 6 Therefore it was claimed that Mrs Carlill did not communicate her acceptance or provided any consideration, and ultiimatly that there was no contract in existance. Counsel on behalf Mrs Carlill argued that “the advertisement was clearly and offer by the defendants, it was published that it might be read and acted on, and they cannot be heard to say that it was an empty boast which they were under no obligation to fulfill”7. It was stated that “ An advertisement was addressed to all the public - as soon as a person does the act mentioned, there is a contract with him”8 The counsel went on to quote case law supporting the notion that “merely doing the act is an acceptance of the proposal”9. The ruling was given by Hawkins J, it was held in favor of Mrs Carlill, as it was established that she was entitled to£100. This decision was appealed and the case was decided by Lindley LJ and Bowen LJ who also found that there did exist a contract between Mrs Carlill and the Carbolic Smoke Ball Company and she was entitled to the reward of £100 as advertised. The Judgment is very interesting to read as it is delivered by some very distinguished judges including Lindley LJ who holds the unique honour of being the last ever appointed “English Serjeant at Law”, along...
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