Carlill v Carbolic Smoke Ball Co - Revision history

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Facts: typo, reverting to standard spelling of the time

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	'''''Carlill v Carbolic Smoke Ball Company''''' [http://www.bailii.org/ew/cases/EWCA/Civ/1892/1.html [1893] 1 QB 256] is an [[English contract law]] decision by the [[English Court of Appeal\|Court of Appeal]], which held an advertisement containing certain terms to get a reward constituted a binding [[Unilateral contract\|unilateral]] offer that could be accepted by anyone who performed its terms. It is notable for its treatment of [[contract]] and of [[puffery]] in advertising, for its curious subject matter associated with medical [[quackery]], and how the influential judges (particularly [[Nathaniel Lindley, Baron Lindley\|Lindley]] and [[Charles Bowen, Baron Bowen\|Bowen]]) developed the law in inventive ways. ''Carlill'' is frequently discussed as an introductory contract case, often one of the first cases a law student studies in the law of contract{{citation needed\|date=April 2025}}.		'''''Carlill v Carbolic Smoke Ball Company''''' [http://www.bailii.org/ew/cases/EWCA/Civ/1892/1.html [1893] 1 QB 256] is an [[English contract law]] decision by the [[English Court of Appeal\|Court of Appeal]], which held an advertisement containing certain terms to get a reward constituted a binding [[Unilateral contract\|unilateral]] offer that could be accepted by anyone who performed its terms. It is notable for its treatment of [[contract]] and of [[puffery]] in advertising, for its curious subject matter associated with medical [[quackery]], and how the influential judges (particularly [[Nathaniel Lindley, Baron Lindley\|Lindley]] and [[Charles Bowen, Baron Bowen\|Bowen]]) developed the law in inventive ways. ''Carlill'' is frequently discussed as an introductory contract case, often one of the first cases a law student studies in the law of contract.{{citation needed\|date=April 2025}}

	The case concerned a purported [[influenza\|flu]] remedy called the "carbolic smoke ball". The manufacturer advertised that buyers who found it did not work would be awarded £100, a considerable amount of money at the time. The company was found to have been bound by its advertisement, which was construed as an [[offer and acceptance\|offer]] which the buyer, by using the smoke ball, accepted, creating a contract. The Court of Appeal held the essential elements of a contract were all present, including [[offer and acceptance]], [[consideration]] and an [[intention to create legal relations]].<ref>{{Citation \|last=Jackson \|first=Nicola \|title=Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 \|date=2019-09-01 \|work=Essential Cases: Contract Law \|url=http://dx.doi.org/10.1093/he/9780191883750.003.0007 \|access-date=2024-01-31 \|publisher=Oxford University Press\|doi=10.1093/he/9780191883750.003.0007 \|doi-broken-date=~~5 January~~ 2025 \|isbn=978-0-19-188375-0 \|url-access=subscription }}</ref>		The case concerned a purported [[influenza\|flu]] remedy called the "carbolic smoke ball". The manufacturer advertised that buyers who found it did not work would be awarded £100, a considerable amount of money at the time (equivalent to £14,000 in 2023). The company was found to have been bound by its advertisement, which was construed as an [[offer and acceptance\|offer]] which the buyer, by using the smoke ball, accepted, creating a contract. The Court of Appeal held the essential elements of a contract were all present, including [[offer and acceptance]], [[consideration]] and an [[intention to create legal relations]].<ref>{{Citation \|last=Jackson \|first=Nicola \|title=Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 \|date=2019-09-01 \|work=Essential Cases: Contract Law \|url=http://dx.doi.org/10.1093/he/9780191883750.003.0007 \|access-date=2024-01-31 \|publisher=Oxford University Press\|doi=10.1093/he/9780191883750.003.0007 \|doi-broken-date=1 July 2025 \|isbn=978-0-19-188375-0 \|url-access=subscription }}</ref>

	== Facts ==		== Facts ==
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	{{Cquote\|£100<ref>£7,792.31 in 2007 pounds/roughly $15,380 mid-2008 US dollars</ref> REWARD will be paid by the CARBOLIC SMOKE BALL CO. to any Person who contracts the Increasing Epidemic, INFLUENZA, Colds, or any Diseases caused by taking Cold, after having used the CARBOLIC SMOKE BALL according to the printed directions supplied with each Ball.		{{Cquote\|£100<ref>£7,792.31 in 2007 pounds/roughly $15,380 mid-2008 US dollars</ref> REWARD will be paid by the CARBOLIC SMOKE BALL CO. to any Person who contracts the Increasing Epidemic, INFLUENZA, Colds, or any Diseases caused by taking Cold, after having used the CARBOLIC SMOKE BALL according to the printed directions supplied with each Ball.

	£1000 is deposited with the ALLIANCE BANK, [[Regent Street]], ~~showing~~ our sincerity in the matter.		£1000 is deposited with the ALLIANCE BANK, [[Regent Street]], shewing our sincerity in the matter.

	During the last epidemic of INFLUENZA many thousand CARBOLIC SMOKE BALLS were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the CARBOLIC SMOKE BALL.		During the last epidemic of INFLUENZA many thousand CARBOLIC SMOKE BALLS were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the CARBOLIC SMOKE BALL.
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	===Law of contract===		===Law of contract===

	''Carlill'' is frequently cited as a leading case in the common law of contract, particularly where unilateral contracts are concerned.		''Carlill'' is frequently cited as a leading case in the [[common law]] of contract, particularly where unilateral contracts are concerned.

	It provides an excellent study of the basic principles of contract and how they relate to everyday life. The case remains good law. It still binds the lower courts of England and Wales and is cited by judges with approval.<ref>e.g. ''Soulsbury v Soulsbury'' [2008] Fam 1, 49 [http://www.bailii.org/cgi-bin/markup.cgi?doc=ew/cases/EWCA/Civ/2007/969.html Bailii]; Longmore applied the concept of unilateral contract in his judgement: "Once the promisee acts on the promise by inhaling the smoke ball, by starting the walk to York or (as here) by not suing for the maintenance to which she was entitled, the promisor cannot revoke or withdraw his offer. But there is no obligation on the promisee to continue to inhale, to walk the whole way to York or to refrain from suing. It is just that if she inhales no more, gives up the walk to York or does sue for her maintenance, she is not entitled to claim the promised sum."</ref> However, in addition to the contractual remedy afforded to users, the same facts would give rise to a number of additional statutory remedies and punishments were an individual to place an advert in the same terms today.		It provides an excellent study of the basic principles of contract and how they relate to everyday life. The case remains good law. It still binds the lower [[courts of England and Wales]] and is cited by judges with approval.<ref>e.g. ''Soulsbury v Soulsbury'' [2008] Fam 1, 49 [http://www.bailii.org/cgi-bin/markup.cgi?doc=ew/cases/EWCA/Civ/2007/969.html Bailii]; Longmore applied the concept of unilateral contract in his judgement: "Once the promisee acts on the promise by inhaling the smoke ball, by starting the walk to York or (as here) by not suing for the maintenance to which she was entitled, the promisor cannot revoke or withdraw his offer. But there is no obligation on the promisee to continue to inhale, to walk the whole way to York or to refrain from suing. It is just that if she inhales no more, gives up the walk to York or does sue for her maintenance, she is not entitled to claim the promised sum."</ref> However, in addition to the contractual remedy afforded to users, the same facts would give rise to a number of additional statutory remedies and punishments were an individual to place an advert in the same terms today.

	Firstly, misleading advertising is a criminal offence. Under the [[Consumer Protection from Unfair Trading Regulations]]<ref>[http://www.opsi.gov.uk/si/si2008/uksi_20081277_en_1 2008/1277 Consumer Protection from Unfair Trading Regulations] {{webarchive\|url=https://web.archive.org/web/20080913133940/http://www.opsi.gov.uk/si/si2008/uksi_20081277_en_1 \|date=2008-09-13 }}</ref> ([[secondary legislation]], passed under the [[European Communities Act 1972 (UK)\|European Communities Act 1972]]), regulation 5 states that a commercial practice is misleading...		Firstly, misleading advertising is a criminal offence. Under the [[Consumer Protection from Unfair Trading Regulations]]<ref>[http://www.opsi.gov.uk/si/si2008/uksi_20081277_en_1 2008/1277 Consumer Protection from Unfair Trading Regulations] {{webarchive\|url=https://web.archive.org/web/20080913133940/http://www.opsi.gov.uk/si/si2008/uksi_20081277_en_1 \|date=2008-09-13 }}</ref> ([[secondary legislation]], passed under the [[European Communities Act 1972 (UK)\|European Communities Act 1972]]), regulation 5 states that a commercial practice is misleading...
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	Thirdly, the [[Consumer Protection Act 1987]] (which is also part of EU wide regulation under Directive 85/374/EEC<ref>[http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31985L0374:EN:NOT Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products]</ref>) creates a statutory [[tort]] of [[strict liability]] for defective products that cause any kind of personal injury or death, or damage over £100. This is the primary method for individuals to get compensation for any loss resulting from products. Similar regimes for [[product liability]] have developed around the world through statute and tort law since the early twentieth century, one of the leading cases being ''[[Donoghue v Stevenson]]''.		Thirdly, the [[Consumer Protection Act 1987]] (which is also part of EU wide regulation under Directive 85/374/EEC<ref>[http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31985L0374:EN:NOT Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products]</ref>) creates a statutory [[tort]] of [[strict liability]] for defective products that cause any kind of personal injury or death, or damage over £100. This is the primary method for individuals to get compensation for any loss resulting from products. Similar regimes for [[product liability]] have developed around the world through statute and tort law since the early twentieth century, one of the leading cases being ''[[Donoghue v Stevenson]]''.

	Fourthly, under the [[Enterprise Act 2002]], s 8, as in most developed countries, industry members form a trade associations. Businesses are expected to collectively regulate one another by drawing up Codes of Practice and have mechanisms for enforcement before tort or criminal law does.		Fourthly, under the [[Enterprise Act 2002]], s 8, as in most developed countries, industry members form a trade associations. Businesses are expected to collectively regulate one another by drawing up Codes of Practice and have mechanisms for enforcement before tort or [[criminal law]] does.

	Viewed with a modern eye, many have argued that ''Carlill'' should be seen as redolent of another era, not a foundational case in the law of contract. For instance, Professor [[Hugh Collins]] writes the following.		Viewed with a modern eye, many have argued that ''Carlill'' should be seen as redolent of another era, not a foundational case in the law of contract. For instance, Professor [[Hugh Collins]] writes the following.
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	The unsuccessful defence counsel in the lower court, H. H. Asquith, went on to become [[Prime Minister of the United Kingdom]].		The unsuccessful defence counsel in the lower court, H. H. Asquith, went on to become [[Prime Minister of the United Kingdom]].

	Louisa Carlill lived until she was 96. She died on March 10, 1942, according to her doctor, Joseph M. Yarman, principally of old age.<ref>Folkestone 2a. 2703 March 1942</ref> But there was one other cause noted: influenza.<ref>Simpson (1985) 389</ref><ref>[~~http~~://news.bbc.co.uk/1/hi/business/8340276.stm BBC: Carbolic smoke ball: fake or cure?] 5 November 2009</ref>		Louisa Carlill lived until she was 96. She died on March 10, 1942, according to her doctor, Joseph M. Yarman, principally of old age.<ref>Folkestone 2a. 2703 March 1942</ref> But there was one other cause noted: influenza.<ref>Simpson (1985) 389</ref><ref>[https://news.bbc.co.uk/2/hi/business/8340276.stm BBC: Carbolic smoke ball: fake or cure?] 5 November 2009</ref>

	==See also==		==See also==

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	One CARBOLIC SMOKE BALL will last a family several months, making it the cheapest remedy in the world at the price—10s., post free. The ball can be refilled, when empty, at a cost of 5s. Address: CARBOLIC SMOKE BALL CO., 27, Princes St., [[Hanover Square, London]], W.}}		One CARBOLIC SMOKE BALL will last a family several months, making it the cheapest remedy in the world at the price—10s., post free. The ball can be refilled, when empty, at a cost of 5s. Address: CARBOLIC SMOKE BALL CO., 27, Princes St., [[Hanover Square, London]], W.}}

	Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used it three times daily for nearly two months until she contracted the flu on 17 January 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, a [[solicitor]]. On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims", they would need her to come to their office to use the ball each day and be checked by the secretary. Carlill sued for breach of contract, her counsel arguing that the advertisement and her reliance on it amounted to a binding contract between her and the company, and that the company should therefore pay the promised £100. The company argued that they had made no legally binding offer which was capable of [[offer and acceptance\|acceptance]], and thus there could be no contract.		Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used it three times daily for nearly two months until she contracted the flu on 17 January 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, a [[solicitor]]. On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims", they would need her to come to their office to use the ball each day and be checked by the secretary. Carlill sued for [[breach of contract]], her counsel arguing that the advertisement and her reliance on it amounted to a binding contract between her and the company, and that the company should therefore pay the promised £100. The company argued that they had made no legally binding offer which was capable of [[offer and acceptance\|acceptance]], and thus there could be no contract.

	==Judgment==		==Judgment==
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	But it was said there was no check on the part of the persons who issued the advertisement, and that it would be an insensate thing to promise £100 to a person who used the smoke ball unless you could check or superintend his manner of using it. The answer to that argument seems to me to be that if a person chooses to make extravagant promises of this kind he probably does so because it pays him to make them, and, if he has made them, the extravagance of the promises is no reason in law why he should not be bound by them.		But it was said there was no check on the part of the persons who issued the advertisement, and that it would be an insensate thing to promise £100 to a person who used the smoke ball unless you could check or superintend his manner of using it. The answer to that argument seems to me to be that if a person chooses to make extravagant promises of this kind he probably does so because it pays him to make them, and, if he has made them, the extravagance of the promises is no reason in law why he should not be bound by them.

	It was also said that the contract is made with all the world — that is, with everybody; and that you cannot contract with everybody. It is not a contract made with all the world. There is the fallacy of the argument. It is an offer made to all the world; and why should not an offer be made to all the world which is to ripen into a contract with anybody who comes forward and performs the condition? It is an offer to become liable to any one who, before it is retracted, performs the condition, and, although the offer is made to the world, the contract is made with that limited portion of the public who come forward and perform the condition on the faith of the advertisement. It is not like cases in which you offer to negotiate, or you issue advertisements that you have got a stock of books to sell, or houses to let, in which case there is no offer to be bound by any contract. Such advertisements are offers to negotiate — offers to receive offers — offers to chaffer, as, I think, some learned judge in one of the cases has said. If this is an offer to be bound, then it is a contract the moment the person fulfils the condition. That seems to me to be sense, and it is also the ground on which all these advertisement cases have been decided during the century; and it cannot be put better than in Willes, J.'s, judgment in ''[[Spencer v Harding]]''. “In the advertisement cases,” he says,		It was also said that the contract is made with all the world — that is, with everybody; and that you cannot contract with everybody. It is not a contract made with all the world. There is the fallacy of the argument. It is an offer made to all the world; and why should not an offer be made to all the world which is to ripen into a contract with anybody who comes forward and performs the condition? It is an offer to become liable to any one who, before it is retracted, performs the condition, and, although the offer is made to the world, the contract is made with that limited portion of the public who come forward and perform the condition on the faith of the advertisement. It is not like cases in which you offer to negotiate, or you issue advertisements that you have got a stock of books to sell, or houses to let, in which case there is no offer to be bound by any contract. Such advertisements are offers to negotiate — offers to receive offers — offers to chaffer, as, I think, some learned judge in one of the cases has said. If this is an offer to be bound, then it is a contract the moment the person fulfils the condition. That seems to me to be sense, and it is also the ground on which all these advertisement cases have been decided during the century; and it cannot be put better than in [[James Shaw Willes\|Willes J.]]'s, judgment in ''[[Spencer v Harding]]''. “In the advertisement cases,” he says,

	<blockquote>“there never was any doubt that the advertisement amounted to a promise to pay the money to the person who first gave information. The difficulty suggested was that it was a contract with all the world. But that, of course, was soon overruled. It was an offer to become liable to any person who before the offer should be retracted should happen to be the person to fulfil the contract, of which the advertisement was an offer or tender. That is not the sort of difficulty which presents itself here. If the circular had gone on, ‘and we undertake to sell to the highest bidder,’ the reward cases would have applied, and there would have been a good contract in respect of the persons.”</blockquote>		<blockquote>“there never was any doubt that the advertisement amounted to a promise to pay the money to the person who first gave information. The difficulty suggested was that it was a contract with all the world. But that, of course, was soon overruled. It was an offer to become liable to any person who before the offer should be retracted should happen to be the person to fulfil the contract, of which the advertisement was an offer or tender. That is not the sort of difficulty which presents itself here. If the circular had gone on, ‘and we undertake to sell to the highest bidder,’ the reward cases would have applied, and there would have been a good contract in respect of the persons.”</blockquote>
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	Then it was said that there was no notification of the acceptance of the contract. One cannot doubt that, as an ordinary rule of law, an acceptance of an offer made ought to be notified to the person who makes the offer, in order that the [[Meeting of minds\|two minds may come together]]. Unless this is done the two minds may be apart, and there is not that consensus which is necessary according to the English law — I say nothing about the laws of other countries — to make a contract. But there is this clear gloss to be made upon that doctrine, that as notification of acceptance is required for the benefit of the person who makes the offer, the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so, and I suppose there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification.		Then it was said that there was no notification of the acceptance of the contract. One cannot doubt that, as an ordinary rule of law, an acceptance of an offer made ought to be notified to the person who makes the offer, in order that the [[Meeting of minds\|two minds may come together]]. Unless this is done the two minds may be apart, and there is not that consensus which is necessary according to the English law — I say nothing about the laws of other countries — to make a contract. But there is this clear gloss to be made upon that doctrine, that as notification of acceptance is required for the benefit of the person who makes the offer, the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so, and I suppose there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification.

	That seems to me to be the principle which lies at the bottom of the acceptance cases, of which two instances are the well-known judgment of [[George Mellish\|Mellish, LJ]], in ''[[Harris's Case]]'',<ref>Law Rep. 7 Ch. 587</ref> and the very instructive judgment of ~~[[Colin Blackburn, Baron Blackburn\|~~Lord Blackburn]] in ''Brogden v Metropolitan Ry Co'',<ref name="2 App. Cas. 666, 691"/> in which he appears to me to take exactly the line I have indicated.		That seems to me to be the principle which lies at the bottom of the acceptance cases, of which two instances are the well-known judgment of [[George Mellish\|Mellish, LJ]], in ''[[Harris's Case]]'',<ref>Law Rep. 7 Ch. 587</ref> and the very instructive judgment of Lord Blackburn in ''Brogden v Metropolitan Ry Co'',<ref name="2 App. Cas. 666, 691"/> in which he appears to me to take exactly the line I have indicated.

	Now, if that is the law, how are we to find out whether the person who makes the offer does intimate that notification of acceptance will not be necessary in order to constitute a binding bargain? In many cases you look to the offer itself. In many cases you extract from the character of the transaction that notification is not required, and in the advertisement cases it seems to me to follow as an inference to be drawn from the transaction itself that a person is not to notify his acceptance of the offer before he performs the condition, but that if he performs the condition notification is dispensed with. It seems to me that from the point of view of common sense no other idea could be entertained. If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course, they at once look after the dog, and as soon as they find the dog they have performed the condition. The essence of the transaction is that the dog should be found, and it is not necessary under such circumstances, as it seems to me, that in order to make the contract binding there should be any notification of acceptance. It follows from the nature of the thing that the performance of the condition is sufficient acceptance without the notification of it, and a person who makes an offer in an advertisement of that kind makes an offer which must be read by the light of that common sense reflection. He does, therefore, in his offer impliedly indicate that he does not require notification of the acceptance of the offer.		Now, if that is the law, how are we to find out whether the person who makes the offer does intimate that notification of acceptance will not be necessary in order to constitute a binding bargain? In many cases you look to the offer itself. In many cases you extract from the character of the transaction that notification is not required, and in the advertisement cases it seems to me to follow as an inference to be drawn from the transaction itself that a person is not to notify his acceptance of the offer before he performs the condition, but that if he performs the condition notification is dispensed with. It seems to me that from the point of view of common sense no other idea could be entertained. If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course, they at once look after the dog, and as soon as they find the dog they have performed the condition. The essence of the transaction is that the dog should be found, and it is not necessary under such circumstances, as it seems to me, that in order to make the contract binding there should be any notification of acceptance. It follows from the nature of the thing that the performance of the condition is sufficient acceptance without the notification of it, and a person who makes an offer in an advertisement of that kind makes an offer which must be read by the light of that common sense reflection. He does, therefore, in his offer impliedly indicate that he does not require notification of the acceptance of the offer.

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