Carlill v Carbolic Smoke Ball Co [] 1 QB advertisement offer not invitation to treat. Sample case summary of Carlill v Carbolic Smoke Ball Co [] 2 QB Prepared by Claire Macken. Facts: • Carbolic Smoke Ball Co (def) promises in ad to. The Chimbuto Smoke Ball Company made a product called the “smoke ball” which claimed to be a cure for influenza and a number of other diseases.

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But is that so in cases of this kind?

Carlill v Carbolic Smoke Ball Co [1893]

Is that to go for nothing? Then, what is left? Did the plaintiff perform some action in exchange for the promise? It is written in colloquial and popular language, and I think that it is equivalent to this:.

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.

Fifth, good consideration was clearly given by Mrs.

Contract Law Casenote: Carlill v Carbolic Smoke Ball Co Court of Appeal UK

I am of opinion, therefore, that there is ample consideration for the promise. Was the promise serious and intended to be acted upon? Roe cunningly turned the whole lost case to his advantage.

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.

It is quite possible to make an offer to the world. But the judges were not impressed with these difficulties, and their attitude was no doubt influenced by the view that the defendants were rogues. 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.


Carlill’s consideration what she gave in return for the offer was good, because there is both an advantage in additional sales in reaction to the advertisement and a “distinct inconvenience” that people go to when using a smoke ball. I refer to them simply for the purpose of dismissing them.

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 czrbolic be bound by them. Was the promise accepted by the plaintiff? There could be at most only a few claimants for this, but there is no limit on the number of those who may catch influenza. 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 carbklic contract with anybody who comes forward and performs the condition?

It seems to me that this advertisement reads as follows:. 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.

The Court of Appeal held the essential elements of a contract were all present, including offer and acceptanceconsideration and an intention to create legal relations. 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 bxll of Mellish, LJ, in Harris’s Case[7] and the very instructive judgment of Lord Blackburn in Brogden v Metropolitan Ry Co[5] in which he appears to me to take exactly the line I have indicated.

The ball will last a family several months, and can be refilled at a cost of 5s. But there is no obligation on the promisee to continue to inhale, to walk the whole way to York or to refrain from suing. An advertisement can constitute a unilateral contract, which can be accepted by fulfilling the conditions of the contract; no formal acceptance required.


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We must apply to that argument the usual legal tests. I cannot picture to myself the view of the law on which the contrary could be held when you have once found who are the contracting parties. Does not the person who fase upon this acrlill and accepts the offer put himself to some inconvenience at the request of the defendants?

And, sincelaw students have been introduced to the mysteries of the unilateral contract through the vehicle of Carlill v Carbolic Smoke Ball Co. In unilateral contracts there is no requirement that the offeree communicates an intention to accept, since acceptance is through full performance. The case remains good carbklic. That is not the sort of difficulty which presents itself here.

Finlay, a mere statement by the defendants of the confidence they entertained in the efficacy of their remedy.

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. Then it was said cwrbolic it is a bet.

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. 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 smooke smoke ball.