Carlill v Carbolic Smoke Ball Co. (1893)

Carlill vs Carbolic Smoke Ball Co.

Reference : [1893] 1 QB 256

Jurisdiction : England

Plaintiff : Louisa Elizabeth Carlill
Defendant : The Carbolic Smoke Ball Co.

Facts :

An advertisement was published by the Carbolic Smoke Ball Co. in the Pall Mall Gazette claiming that £100 would be rewarded to anybody who would contract epidemic influenza, cold, or any disease caused by taking cold after using the carbolic smoke ball three times daily for two weeks. Additionally, the advertisement also mentioned that £100 had already been deposited to the Alliance Bank as a sign of sincerity. Despite using the smokeball according to the instructions, the plaintiff contracted the flu. When the company was notified, they refused to reward her the £100 as promised unless she agreed to prove that she had been using the smoke ball properly by doing so at their office every day. The company cited the potential risk of fraudulent claims as well as their complete confidence in their product as reasons.

When the issue was brought before the court, the defendant argued that the plaintiff was not entitled to the reward for several reasons :

1. The promise of reward was merely a puff so often used in various advertisements, as opposed to an intended legal promise.
2. No person was named in the advertisement. Under such circumstances, if the plaintiff were to be granted the reward, the advertisement would be a contract with the entire world. Such a contract cannot be valid.
3. There was no way for the defendant to check and ensure whether the plaintiff had used the smoke ball properly or not.
4. There was no notification of acceptance of the offer from the plaintiff.
5. There was no consideration, making it a nudum pactum.

Decisions :

The arguments presented by the defendant were debunked by the Judges :

1. The fact that the defendant had deposited £100 to the Alliance Bank was enough to prove the promise to be an intended and legal one and not a mere puff.
2. This was indeed not a contract made with the whole world. Rather, it was an offer made to the whole world and anybody who would use the carbolic smoke ball three times a day for two weeks would be accepting that offer. And an offer can indeed be made to the entire world. BOWEN, L.J. mentioned in the Judgement, ❝…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.❞
3. Although the defendant had no way of ensuring whether the plaintiff had really used the product according to the instructions or not, such concerns were dismissed by BOWEN, L.J. in his Judgement as he said, ❝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.❞
4. It was concluded by the Bench that no prior notification of acceptance was necessary in this particular case. The performance of the actions mentioned in the advertisement was enough for it to be a valid acceptance and the notification of the performance was enough.
5. Although in plain sight, there seems to be no consideration, A. L. SMITH, L.J. mentioned two considerations in this particular contract. One was the inconvenience suffered by the plaintiff having to use the carbolic smoke ball thrice a day for two weeks. The other consideration was the gain of money by the defendant which could be connected to the increased sales due to the plaintiff’s use of the product. A consideration doesn’t have to be a sum of money or a service. Rather, it could also be an inconvenience suffered.

Based on such observations, the Court decided in favour of the plaintiff and dismissed the defendant’s appeal.

Relevant Law : (Bangladesh)

1. The Contract Act, 1872
   • Section : 2 (a), 8, 10

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Author :
1. S.M. Monzur Morshed

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