The — flu pandemic was estimated to have killed 1 million people. The smoke ball was a rubber ball with a tube attached. It was filled with carbolic acid or phenol. The nose would run, ostensibly flushing out viral infections.
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The — flu pandemic was estimated to have killed 1 million people. The smoke ball was a rubber ball with a tube attached. It was filled with carbolic acid or phenol. The nose would run, ostensibly flushing out viral infections. 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. One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s.
The ball can be refilled at a cost of 5s. 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 They ignored two letters from her husband, a solicitor. Carlill brought a claim to court. The barristers representing her argued that the advertisement and her reliance on it was a contract between the company and her, so the company ought to pay. The company argued it was not a serious contract.
It appealed straight away. The judgments of the court were as follows. I will begin by referring to two points which were raised in the Court below. I refer to them simply for the purpose of dismissing them. First, it is said no action will lie upon this contract because it is a policy.
You have only to look at the advertisement to dismiss that suggestion. Then it was said that it is a bet. Hawkins, J. I so entirely agree with him that I pass over this contention also as not worth serious attention. Then, what is left? The first observation I will make is that we are not dealing with any inference of fact.
And fifth, the nature of Mrs. Lord Justice Lindley was a prolific author, widely known for his work on partnership and company law. We must first consider whether this was intended to be a promise at all, or whether it was a mere puff which meant nothing. Was it a mere puff? 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. Then it is contended that it is not binding. In the first place, it is said that it is not made with anybody in particular.
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. That rests upon a string of authorities, the earliest of which is Williams v Carwardine ,  which has been followed by many other decisions upon advertisements offering rewards.
But is that so in cases of this kind? I apprehend that they are an exception to that rule, or, if not an exception, they are open to the observation that the notification of the acceptance need not precede the performance.
This offer is a continuing offer. If he gets notice of the acceptance before his offer is revoked, that in principle is all you want. I, however, 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.
We, therefore, find here all the elements which are necessary to form a binding contract enforceable in point of law, subject to two observations. 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. 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. Then it is asked, What is a reasonable time? It has been suggested that there is no standard of reasonableness; that it depends upon the reasonable time for a germ to develop!
I do not feel pressed by that. It strikes me that a reasonable time may be ascertained in a business sense and in a sense satisfactory to a lawyer , in this way; find out from a chemist what the ingredients are; find out from a skilled physician how long the effect of such ingredients on the system could be reasonably expected to endure so as to protect a person from an epidemic or cold, and in that way you will get a standard to be laid before a jury , or a judge without a jury, by which they might exercise their judgment as to what a reasonable time would be.
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 for 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. We were pressed upon this point with the case of Gerhard v Bates ,  which was the case of a promoter of companies who had promised the bearers of share warrants that they should have dividends for so many years, and the promise as alleged was held not to shew any consideration.
Then Lord Campbell goes on to enforce that view by shewing that there was no consideration shewn for the promise to him. But in the present case, for the reasons I have given, I cannot see the slightest difficulty in coming to the conclusion that there is consideration.
It appears to me, therefore, that the defendants must perform their promise, and, if they have been so unwary as to expose themselves to a great many actions, so much the worse for them. Five main steps in his reasoning can be identified. First, he says that the contract was not too vague to be enforced, because it could be interpreted according to what ordinary people would understand by it. He differed slightly from Lindley LJ on what time period one could contract flu and still have a claim Lindley LJ said a "reasonable time" after use, while Bowen LJ said "while the smoke ball is used" , but this was not a crucial point, because the fact was that Mrs.
Carlill got flu while using the smoke ball. Third, he said that although an offer was made to the whole world, the contract was not with the whole world. Therefore, it was not an absurd basis for a contract, because only the people who used it would bind the company.
Fourth, he says that communication is not necessary to accept the terms of an offer; conduct is and should be sufficient. Fifth, good consideration was clearly given by Mrs.
Carlill because she went to the "inconvenience" of using it, and the company got the benefit of extra sales. I am of the same opinion. We were asked by the council for the defendants to say that this document was a contract too vague to be enforced. The first observation which arises is that the document itself is not a contract at all, it is only an offer made to the public.
The defendants contend next, that it is an offer the terms of which are too vague to be treated as a definite offer, inasmuch as there is no limit of time fixed for the catching of the influenza, and it cannot be supposed that the advertisers seriously meant to promise to pay money to every person who catches the influenza at any time after the inhaling of the smoke ball.
It is also contended that the advertisement is rather in the nature of a puff or a proclamation than a promise or offer intended to mature into a contract when accepted. But the main point seems to be that the vagueness of the document shews that no contract whatever was intended.
It seems to me that in order to arrive at a right conclusion we must read this advertisement in its plain meaning, as the public would understand it.
It was intended to be issued to the public and to be read by the public. How would an ordinary person reading this document construe it? It was intended unquestionably to have some effect, and I think the effect which it was intended to have, was to make people use the smoke ball, because the suggestions and allegations which it contains are directed immediately to the use of the smoke ball as distinct from the purchase of it.
It did not follow that the smoke ball was to be purchased from the defendants directly, or even from agents of theirs directly. The intention was that the circulation of the smoke ball should be promoted, and that the use of it should be increased. The advertisement begins by saying that a reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic after using the ball.
It has been said that the words do not apply only to persons who contract the epidemic after the publication of the advertisement, but include persons who had previously contracted the influenza. I cannot so read the advertisement. Is it to go on for ever, or for what limit of time? It may mean that the protection is warranted to last during the epidemic, and it was during the epidemic that the plaintiff contracted the disease. I think, more probably, it means that the smoke ball will be a protection while it is in use.
That seems to me the way in which an ordinary person would understand an advertisement about medicine, and about a specific against influenza. It could not be supposed that after you have left off using it you are still to be protected for ever, as if there was to be a stamp set upon your forehead that you were never to catch influenza because you had once used the carbolic smoke ball.
Carlill v. Carbolic Smoke Ball Co.
Carbolic smoke ball: fake or cure? By Clive Coleman BBC Radio 4 The curious case of the carbolic smoke ball forced companies to treat customers honestly and openly and still has impact today. The case of Carlill and the Carbolic Smoke Ball Company is an odd tale set against the backdrop of the swirling mists and fog of Victorian London, a terrifying Russian flu pandemic, and a forest of unregulated quack medicines offering cures for just about everything. It is a case known to legal students the world over. It is also seen by some as the birth of modern consumer protection - as it helped to define in law the trading relationship between a company and its customers. The carbolic smoke ball was a peculiar device marketed as a cure for various ailments including influenza.
BBC Sport (International version)