Carlill v. Carbolic Smoke Ball Co.

Court of Appeal (London), 1893

 

Parties:

P – flu sufferer; buyer of smoke balls

D – manufacturer of smoke balls (which supposedly prevent the flu)

 

Relief Requested:

100 British pounds (the "promised" reward)

 

Legal Theories Used:

By D

  1. Bad policy to regard ad as binding contract
  2. The ad is really a bet and is illegal

By P

1. Binding contract formed; i.e. advertisement constituted an offer, and buying smoke balls, using them as directed, and then getting sick constituted an acceptance

 

Facts:
  • D placed ad promising 100 pounds to anyone who bought and used the smoke balls three times daily for 2 weeks but still contracted the flu
  • D backed up ad with claim they had deposited 1000 pounds in bank
  • P did as directed, but still contracted flu
    •

 

Issue:
  1. Inference of fact?
  2. Mere puff?
  3. Not binding because it’s not made to anyone in particular?
  4. Is outright notice of acceptance needed?
    5.
  5. Too vague?
  6. No consideration for the D?
    7.

 

Holding:
  1. No – it’s a clear promise
  2. No – it’s a serious offer
  3. No – it’s a unilateral offering a reward
  4. No – notice of performance is good enough
    5.
  5. No – it’s specific enough
  6. No – there is consideration
    7.

THEREFORE – JUDGEMENT FOR PLAINTIFF

 

 

Reasoning:
  1. There is an express promise here, "expressed in language that is perfectly unmistakable"
  2. 1000 pounds deposited speaks to their sincerity
  3. Ads are binding if they offer a specific reward for a specific performance
  4. Notice of performance is contemporaneous with notice of acceptance; in an offer like this, offerer is basically agreeing that by performing, the offeree is automatically accepting
    5.
  5. Not too vague – any way you read it, plaintiff wins (even if analyzed under the condition that she can fall victim of the flu within a "reasonable time"
  6. Even if someone steals the smoke balls (and therefore D is not paid), if they work, more people will buy them. Since the d thinks they work, then the more people that use them, the more that will buy them, which is a direct benefit to the D
    7.

 

Rule:

In offers where a specific performance is required, NOTICE OF PERFORMANCE = NOTICE OF ACCEPTANCE, at which time the contract is complete

 

Dicta:

If the D is subjected to lots of other suits – ‘So much the worse for them’