Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256 (CA)
The defendants, who made and sold a medical product called ‘The Carbolic Smoke Ball’, issued an advertisement in a number of newspapers in the following terms:
£100 reward will be paid by the Carbolic Smoke Ball Company 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.
On the basis of this advertisement, the plaintiff bought one of the balls at a chemist and used it
as directed three times a day from 20 November 1891 to 17 January 1892, when she contracted
influenza. She sought payment of the £100 and the defendants refused, triggering an action in court.
At the Court of first instance, it was held that the plaintiff was entitled to recover, since the advertisement was intended to attract customers and was supported by the deposit with the Company’s bank. The Company should not have been surprised if it was held to its promise.
This decision was affirmed on appeal.
One of the arguments put up by the Defendants was that the advert was a ‘mere puff’, or advertising gimmick, which was not intended to be taken literally and which therefore could not be enforced by the plaintiff. The court rejected this argument, pointing out that the allocation of a reward negatived any proposition that this was a mere puff.
LINDLEY LJ: Was it a mere puff? My answer to that question is No, and I base my answer upon this passage: £1000. is deposited with the Alliance Bank, shewing our sincerity in the matter.’ Now, for what was that money deposited or that statement made except to negative the suggestion that this was a mere puff and meant nothing at all?
The deposit is called in aid by the advertiser as proof of his sincerity in
the matter—that is, the sincerity of his promise to pay this £100 in the event which he has specified. I say this for the purpose of giving point to the observation that we are not inferring a promise; there is the
promise, as plain as words can make it.
The court explained that this was a unilateral offer, i.e. a promise to pay money in exchange for an act. Performance of the stipulated act was a sufficient enough acceptance.
LINDLEY LJ: Now that point is common to the words of this advertisement and to the words of all other advertisements offering rewards. They are offers to anybody who performs the conditions named in the advertisement, and anybody who does perform the condition accepts the offer. In point of law this advertisement is an offer to pay £100 to anybody who will perform these conditions, and the performance of the conditions is the acceptance of the offer
The defendant’s perhaps most compelling argument to escape liability was to make the point that acceptance had to be communicated to the offeror. The failure to communicate this rendered the acceptance invalid. The court rejected this argument, stating that the nature of such offers simply demanded notification of the performance, not acceptance of the offer.
LINDLEY LJ: But then it is said, ‘Supposing that the performance of the conditions is an acceptance of the offer, that acceptance ought to have been notified.’ Unquestionably, as a general proposition, when an offer is made, it is necessary in order to make a binding contract, not only that it should be accepted, but that the acceptance should be notified. But is that so in cases of this kind? . . . I think that the true view, in a case of this kind, is that the person who makes the offer shews by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance apart from notice of the performance.
The defendant argued that the “offer” was vague and hence could not be a promise at all. The court agreed that there were some gaps in the instructions, especially about specific times the product should be used. However it took the view that any of the three practical ways within proximate reasoning, the instructions can only be construed to work in the favour of the plaintiff.
LINDLEY LJ: The language is vague and uncertain in some respects, and particularly in this, that the £100 is to be paid to any person who contracts the increasing epidemic after having used the balls three times daily for two weeks. It is said, When are they to be used? According to the language of the advertisement no time is fixed, and, construing the offer most strongly against the person who has made it, one might infer that any time was meant. I do not think that was meant, and to hold the contrary would be pushing too far the doctrine of taking language most strongly against the person using it. I do not think that business people or reasonable people would understand the words as meaning that if you took a smoke
ball and used it three times daily for two weeks you were to be guaranteed against influenza for the rest of your life, and I think it would be pushing the language of the advertisement too far to construe it as meaning that.
But if it does not mean that, what does it mean? It is for the defendants to shew what it does mean; and it strikes me that there are two, and possibly three, reasonable constructions to be put on this advertisement, any one of which will answer the purpose of the plaintiff. Possibly it may be limited to persons catching the ‘increasing epidemic’ (that is, the then prevailing epidemic), or any colds or diseases caused by taking cold, during the prevalence of the increasing epidemic. That is one suggestion; but it does not commend itself to me.
Another suggested meaning is that you are warranted free from catching this epidemic, or colds or other diseases caused by taking cold, whilst you are using this remedy after using it for two weeks. If that is the meaning, the plaintiff is right, for she used the remedy for two weeks and went on using it till she got the epidemic. Another meaning, and the one which I rather prefer, is that the reward is offered to any person who contracts the epidemic or other disease within a reasonable time after having used the smoke ball.
Finally, there was the argument that the promise by the Company had to be supported by consideration provided by Mrs Carlill – essentially Mrs Carlill had to give something of value in exchange for the Company’s promise). Consideration was seen as being either a benefit to the offeror (the Smoke Ball Company) and/or a detriment to the offeree (Mrs Carlill). The court found that the use of the smoke ball in accordance to the instructions of the Company was quite sufficient consideration for the promise. Additionally, the Company obtained a benefit by getting public confidence in the product to enhance sales.
LINDLEY LJ: It has been argued that this is nudum pactum—that there is no consideration. We must apply to that argument the usual legal tests. Let us see whether there is no advantage to the defendants. It is said that the use of the ball is no advantage to them, and that what benefits them is the sale; and the case is put that a lot of these balls might be stolen, and that it would be no advantage to the defendants if the thief or other people used them. The answer to that, I think, is as follows. It is quite obvious that in the view of the advertisers a use by the public of their remedy, if they can only get the public to have confidence enough to use it, will react and produce a sale which is directly beneficial to them. Therefore, the advertisers get out of the use an advantage which is enough to constitute a consideration. But there is another view. Does not the person who acts upon this advertisement and accepts the offer put himself to some inconvenience at the request of the defendants? Is it nothing to use this ball three times daily for two weeks according to the directions at the request of the advertiser? Is that to go or nothing? It appears to me that there is a distinct inconvenience, not to say a detriment, to any person who so uses the smoke ball. I am of opinion, therefore, that there is ample consideration for the promise.
