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Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256; [1891-1894] All E.R. Rep.

127, Court of Appeal

[This version of the judgment has been edited by Dr Robert N Moles

Underlining where it occurs is for editorial emphasis]

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The defendants were the manufacturers of an influenza remedy, the carbolic

smokeball. In a newspaper advertisement the defendants offered £100 "reward" to

any person contracting influenza having used the remedy in accordance with the

company's directions. The advertisement also stated that the defendants had

deposited £1000 with the bank to show the sincerity of their offer. The plaintiff on

the faith of this offer bought and used the remedy in accordance with the

directions, but shortly after, contracted influenza.

In demonstrating the versatility of a good counsel, D argued that:

1. The transaction was a bet under the Gaming Act - not enforceable.

2. The transaction was an illegal policy of insurance.

3. The advertisement was a mere "puff" - never intended to create legal relations.

4. There was no offer to a particular person and that one cannot contract with

everyone.

5. If there was an offer, P failed to notify the acceptance.

6. The terms of the offer were too vague in failing to specify when the influenza

should be contracted.

7. There was no consideration flowing from the plaintiff.

HELD - Lindley LJ

His Honour rejected the first two arguments as not worthy of serious attention. He

held in respect of the following points that:

The claim that the advertisement was "mere puff" was inconsistent with the

statement that £1000 had been deposited in the bank as proof of the defendant's

sincerity.

While the offer was made to the world at large, the offer was accepted only by

those performing the stated conditions.

The nature of the offer is such that notice of acceptance need not be given, only

notice of performance. Generally acceptance should be notified, but in this case

the defendant waived this requirement.

The terms were sufficiently certain. The advertisement should be read as requiring

that influenza be contracted within a "reasonable time".

The argument that the plaintiff provided no consideration was rejected. Firstly,

there was the benefit to the defendant of the plaintiff's purchase, though not

directly from the defendant. Secondly, the inconvenience to the plaintiff of

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Contract Law Casenote: Carlill v Carbolic Smoke Ball Co 1893 Court of... http://netk.net.au/Contract/Carlill.asp

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undergoing the remedy.

Bowen L.J

His Honour indicated that the court should "read the advertisement in its plain

meaning, as the public would understand it". His Honour was in broad agreement

with Lindley LJ. In particular, in relation to point 5, His Honour commented that,

as an ordinary rule of law, an acceptance should be notified to the person who

makes the offer "in order that the two minds may come together". But because of

the nature of the offer, this case forms an exception to this rule.

Smith LJ was in broad agreement

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