Prepared by Claire Macken
• Carbolic Smoke Ball Co (def) promises in ad to pay 100 pounds to any person who contracts flu after using smoke ball.
• Carlill (plaintiff) uses ball but contracts flu + relies on ad.
Issue: Was there a binding contract between the parties?
- A contract requires notification of acceptance - Did Mrs Carlill notify Carbolic of the acceptance of the offer?
- Did Mrs Carlill provide consideration in exchange for the 100 pounds reward?
Def argument is: There was no binding contract - the words of the ad did not amount to a promise b/c:
• the ad was too vague to make a contract - there was no limit as to time & no means of checking use of the ball by consumers;
• the terms are too vague to make a contract- no limit as to time - a person might claim they contracted flu 10 yrs after using the remedy
• No contract b/c a contract requires communication of intention to accept the offer or performance of some overt act
Plaintiff’s argument is: ad was an offer they were under an obligation to fulfill because it was published so it would be read and acted upon & it was not an empty boast.
• The promise was not vague - & there was consideration.
Held: (Application). There was a binding contract. Carlill successful.
Lindley LJ - The ad was an express promise - to pay 100 pounds to anyone who contracts flu after using the ball three times daily x 2 weeks.
• The ad was not a mere puff: b/c of this statement “1000 is deposited with the Alliance Bank, shewing our sincerity in the matter” - proof of sincerity to pay
• Promise is binding even though not made to anyone in particular - a unilateral offer - ie. “offers to anybody who performs the conditions named in the advertisement, and anybody who does perform the condition accepts the offer”.
• The ad is not so vague that it cannot be construed as a promise - the words can be