Carlill v Carbolic Smoke Ball Co

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Carlill v Carbolic Smoke Ball Co, [1893] 1 Q.B. 256 (1892)
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Carlill v Carbolic Smoke Ball Company.
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Court
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Court of Appeal
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\u160\'3f
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Judgment Date
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7 December 1892
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[1893] 1 Q.B. 256
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In the Court of Appeal.
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Lindley , Bowen and A. L. Smith , L.JJ.
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1892 Dec. 6, 7.
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Contract\u8212\'3fOffer by Advertisement\u8212\'3fPerformance of Condition in
Advertisement\u8212\'3fNotification of Acceptance of Offer\u8212\'3fWager\
u8212\'3fInsurance\u8212\'3f 8 & 9 Vict. c. 109 \u8212\'3f 14 Geo. 3, c. 48, s. 2 .
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\u160\'3f
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The defendants, the proprietors of a medical preparation called \u8220\'3fThe
Carbolic Smoke Ball,\u8221\'3f issued an advertisement in which they offered to pay
100
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. to any person who contracted the influenza after having used one of their smoke
balls in a specified manner and for a specified period. The plaintiff on the faith
of the advertisement bought one of the balls, and used it in the manner and for the
period specified, but nevertheless contracted the influenza:\u8212\'3f
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\u160\'3f
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Held, affirming the decision of Hawkins, J., that the above facts established a
contract by the defendants to pay the plaintiff 100
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. in the event which had happened; that such contract was neither a contract by way
of wagering within 8 & 9 Vict. c. 109 , nor a policy within 14 Geo. 3, c. 48, s.
2 ; and that the plaintiff was entitled to recover.
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\u160\'3f
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APPEAL from a decision of Hawkins, J.
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The defendants, who were the proprietors and vendors of a medical preparation
called \u8220\'3fThe Carbolic Smoke Ball,\u8221\'3f inserted in the
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Pall Mall Gazette
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of November 13, 1891, and in other
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*257
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newspapers, the following advertisement:
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\u8220\'3f100
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. reward will be paid by the Carbolic Smoke Ball Company to any person who
contracts the increasing epidemic influenza, colds, or any disease caused by taking
cold, after having used the ball three times daily for two weeks according to the
printed directions supplied with each ball. 1000l. is deposited with the Alliance
Bank, Regent Street, shewing our sincerity in the matter.
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\u160\'3f
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{\b0 \cf1 \f2 \ri200 \i0 \qj \fs20 \li200
\u8220\'3fDuring 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.
\par
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\u160\'3f
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\u8220\'3fOne 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 at a cost of 5s. Address, Carbolic Smoke Ball Company, 27, Princes Street,
Hanover Square, London.\u8221\'3f
\par
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\u160\'3f
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The plaintiff, a lady, on the faith of this advertisement, bought one of the balls
at a chemist\rquote s, and used it as directed, three times a day, from November
20, 1891, to January 17, 1892, when she was attacked by influenza. Hawkins, J.,
held that she was entitled to recover the 100
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. The defendants appealed.
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Finlay, Q.C.,
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and
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T. Terrell
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, for the defendants. The facts shew that there was no binding contract between
the parties. The case is not like
}
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Williams v. Carwardine
}
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2
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, where the money was to become payable on the performance of certain acts by the
plaintiff; here the plaintiff could not by any act of her own establish a claim,
for, to establish her right to the money, it was necessary that she should be
attacked by influenza - an event over which she had no control. The words express
an intention, but do not amount to a promise:
}
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Week v. Tibold
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.
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3
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The present case is similar to
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Harris v. Nickerson
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.
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4
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The advertisement is too vague to be the basis of a contract; there is no limit as
to time, and no means of checking the use of the ball. Anyone who had influenza
might come forward and depose that he had used the ball for a fortnight, and it
would be
}
{\b1 \cf23 \f2 \i1 \fs20
*258
}
}
impossible to disprove it.
}
{\b0 \cf1 \f2 \i1 \fs20
Guthing v. Lynn
}
}
{\b0 \cf1 \f2 \i0 \fs16
5
}}}
}
supports the view that the terms are too vague to make a contract, there being no
limit as to time, a person might claim who took the influenza ten years after using
the remedy. There is no consideration moving from the plaintiff:
}
{\b0 \cf1 \f2 \i1 \fs20
Gerhard v. Bates
}
}
{\b0 \cf1 \f2 \i0 \fs16
6
}}}
}
. The present case differs from
}
{\b0 \cf1 \f2 \i1 \fs20
Denton v. Great Northern Ry. Co.
}
}
{\b0 \cf1 \f2 \i0 \fs16
7
}}}
}
, for there an overt act was done by the plaintiff on the faith of a statement by
the defendants. In order to make a contract by fulfilment of a condition, there
must either be a communication of intention to accept the offer, or there must be
the performance of some overt act. The mere doing an act in private will not be
enough. This principle was laid down by Lord Blackburn in
}
{\b0 \cf1 \f2 \i1 \fs20
Brogden v. Metropolitan Ry. Co.
}
}
{\b0 \cf1 \f2 \i0 \fs16
8
}}}
}
The terms of the advertisement would enable a person who stole the balls to claim
the reward, though his using them was no possible benefit to the defendants. At all
events, the advertisement should be held to apply only to persons who bought
directly from the defendants. But, if there be a contract at all, it is a wagering
contract, as being one where the liability depends on an event beyond the control
of the parties, and which is therefore void under 8 & 9 Vict. c. 109 . Or, if not,
it is bad under 14 Geo. 3, c. 48, s. 2 , as being a policy of insurance on the
happening of an uncertain event, and not conforming with the provisions of that
section.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \i1 \fs20
Dickens, Q.C.,
}
}
and
}
{\b0 \cf1 \f2 \i1 \fs20
W. B. Allen
}
}
, for the plaintiff. [THE COURT intimated that they required no argument as to the
question whether the contract was a wager or a policy of insurance.] The
advertisement clearly was an offer by the defendants; it was published that it
might be read and acted on, and they cannot be heard to say that it was an empty
boast, which they were under no obligation to fulfil. The offer was duly accepted.
An advertisement was addressed to all the public - as soon as a person does the act
mentioned, there is a contract with him. It is said that there must be a
communication of the acceptance; but the language of Lord Blackburn, in
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
{\b0 \cf1 \f2 \i0 \fs16
9
}}}
}
, shews that merely doing the acts indicated is an acceptance of the proposal. It
never was intended
}
{\b1 \cf23 \f2 \i1 \fs20
*259
}
}
that a person proposing to use the smoke ball should go to the office and obtain a
repetition of the statements in the advertisement. The defendants are endeavouring
to introduce words into the advertisement to the effect that the use of the
preparation must be with their privity or under their superintendence. Where an
offer is made to all the world, nothing can be imported beyond the fulfilment of
the conditions. Notice before the event cannot be required; the advertisement is an
offer made to any person who fulfils the condition, as is explained in
}
{\b0 \cf1 \f2 \i1 \fs20
Spencer v. Hardin
}
}
.
}
{\b0 \cf1 \f2 \i0 \fs16
10
}}}
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
.
}
{\b0 \cf1 \f2 \i0 \fs16
11
}}}
}
shews strongly that notice to the person making the offer is not necessary. The
promise is to the person who does an act, not to the person who says he is going to
do it and then does it. As to notice after the event, it could have no effect, and
the present case is within the language of Lord Blackburn in
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
{\b0 \cf1 \f2 \i0 \fs16
12
}}}
}
It is urged that the terms are too vague and uncertain to make a contract; but, as
regards parties, there is no more uncertainty than in all other cases of this
description. It is said, too, that the promise might apply to a person who stole
any one of the balls. But it is clear that only a person who lawfully acquired the
preparation could claim the benefit of the advertisement.
}
It is also urged that the terms should be held to apply only to persons who bought
directly from the defendants; but that is not the import of the words, and there is
no reason for implying such a limitation, an increased sale being a benefit to the
defendants, though effected through a middleman, and the use of the balls must be
presumed to serve as an advertisement and increase the sale. As to the want of
restriction as to time, there are several possible constructions of the terms; they
may mean that, after you have used it for a fortnight, you will be safe so long as
you go on using it, or that you will be safe during the prevalence of the epidemic.
Or the true view may be that a fortnight\rquote s use will make a person safe for a
reasonable time. Then as to the consideration. In
}
{\b0 \cf1 \f2 \i1 \fs20
Gerhard v. Bates
}
}
{\b0 \cf1 \f2 \i0 \fs16
13
}}}
}
, Lord Campbell never meant to say that if there was a direct invitation to take
shares, and shares were taken on the faith of it, there was
}
{\b1 \cf23 \f2 \i1 \fs20
*260
}
}
no consideration. The decision went on the form of the declaration, which did not
state that the contract extended to future holders. The decision that there was no
consideration was qualified by the words \u8220\'3fas between these parties,\
u8221\'3f the plaintiff not having alleged himself to be a member of the class to
whom the promise was made.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \i1 \fs20
Finlay, Q.C.,
}
}
in reply. There is no binding contract. The money is payable on a person\rquote s
taking influenza after having used the ball for a fortnight, and the language would
apply just as well to a person who had used it for a fortnight before the
advertisement as to a person who used it on the faith of the advertisement. The
advertisement is merely an expression of intention to pay 100
}
{\b0 \cf1 \f2 \i0 \fs20
{\b1 \cf1 \f2 \i1 \fs20
l
}
}
}
. to a person who fulfils two conditions; but it is not a request to do anything,
and there is no more consideration in using the ball than in contracting the
influenza. That a contract should be completed by a private act is against the
language of Lord Blackburn in
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
{\b0 \cf1 \f2 \i0 \fs16
14
}}}
}
. The use of the ball at home stands on the same level as the writing a letter
which is kept in the writer\rquote s drawer. In
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
{\b0 \cf1 \f2 \i0 \fs16
15
}}}
}
the fact was ascertained by a public, not a secret act. The respondent relies on
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
{\b0 \cf1 \f2 \i0 \fs16
16
}}}
}
, and the other cases of that class; but there a service was done to the
advertiser. Here no service to the defendants was requested, for it was no benefit
to them that the balls should be used: their interest was only that they should be
sold. Those cases also differ from the present in this important particular, that
in them the service was one which could only be performed by a limited number of
persons, so there was no difficulty in ascertaining with whom the contract was
made. It is said the advertisement was not a legal contract, but a promise in
honour, which, if the defendants had been approached in a proper way, they would
have fulfilled. A request is as necessary in the case of an executed consideration
as of an executory one:
}
{\b0 \cf1 \f2 \i1 \fs20
Lampleigh v. Braithwait
}
}
{\b0 \cf1 \f2 \i0 \fs16
17
}}}
}
; and here there was no request. Then as to the want of limitation as to time, it
is conceded that the defendants cannot have meant to contract without some
}
{\b1 \cf23 \f2 \i1 \fs20
*261
}
}
limit, and three limitations have been suggested. The limitation \u8220\'3fduring
the prevalence of the epidemic\u8221\'3f is inadmissible, for the advertisement
applies to colds as well as influenza. The limitation \u8220\'3fduring use\
u8221\'3f is excluded by the language \u8220\'3fafter having used.\u8221\'3f The
third is, \u8220\'3fwithin a reasonable time,\u8221\'3f and that is probably what
was intended; but it cannot be deduced from the words; so the fair result is that
there was no legal contract at all.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
LINDLEY, L.J.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
[The Lord Justice stated the facts, and proceeded:\u8212\'3f] 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., came to the conclusion that nobody ever dreamt of a bet, and that the
transaction had nothing whatever in common with a bet. I so entirely agree with him
that I pass over this contention also as not worth serious attention.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Then, what is left? The first observation I will make is that we are not dealing
with any inference of fact. We are dealing with an express promise to pay 100
}
{\b0 \cf1 \f2 \i0 \fs20
{\b1 \cf1 \f2 \i1 \fs20
l
}
}
}
. in certain events. Read the advertisement how you will, and twist it about as you
will, here is a distinct promise expressed in language which is perfectly
unmistakable \u8212\'3f
\par
}
{\b0 \cf1 \f2 \ri200 \i0 \qj \fs20 \li200
{\b0 \cf1 \f2 \ri200 \i0 \qj \fs20 \li200
\u8220\'3f100l. reward will be paid by the Carbolic Smoke Ball Company to any
person who contracts the iufluenza after having used the ball three times daily for
two weeks according to the printed directions supplied with each ball.\u8221\'3f
\par
}
}
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
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? My answer to that
question is No, and I base my answer upon this passage: \u8220\'3f1000
}
{\b0 \cf1 \f2 \i0 \fs20
{\b1 \cf1 \f2 \i1 \fs20
l
}
}
}
. is deposited with the Alliance Bank, shewing our sincerity in the matter.\
u8221\'3f Now, for what was that money deposited or that statement made except to
negative the suggestion that this was a mere puff and meant nothing at all? The
deposit is called in
}
{\b1 \cf23 \f2 \i1 \fs20
*262
}
}
aid by the advertiser as proof of his sincerity in the matter - that is, the
sincerity of his promise to pay this 100l. in the event which he has specified. 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.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
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. In point of law this
advertisement is an offer to pay 100
}
{\b0 \cf1 \f2 \i0 \fs20
{\b1 \cf1 \f2 \i1 \fs20
l
}
}
}
. to anybody who will perform these conditions, and the performance of the
conditions is the acceptance of the offer. That rests upon a string of authorities,
the earliest of which is
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
{\b0 \cf1 \f2 \i0 \fs16
18
}}}
}
, which has been followed by many other decisions upon advertisements offering
rewards.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
But then it is said, \u8220\'3fSupposing that the performance of the conditions is
an acceptance of the offer, that acceptance ought to have been notified.\u8221\'3f
Unquestionably, as a general proposition, when an offer is made, it is necessary in
order to make a binding contract, not only that it should be accepted, but that the
acceptance should be notified. 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. It was never revoked, and if notice
of acceptance is required - which I doubt very much, for I rather think the true
view is that which was expressed and explained by Lord Blackburn in the case of
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
{\b0 \cf1 \f2 \i0 \fs16
19
}}}
}
- if notice of acceptance is required, the person who makes the offer gets the
notice of acceptance contemporaneously with his notice of the performance of the
condition. 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
}
{\b1 \cf23 \f2 \i1 \fs20
*263
}
}
does not expect and does not require notice of the acceptance apart from notice of
the performance.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
We, therefore, find here all the elements which are necessary to form a binding
contract enforceable in point of law, subject to two observations. First of all it
is said that this advertisement is so vague that you cannot really construe it as a
promise - that the vagueness of the language shews that a legal promise was never
intended or contemplated. The language is vague and uncertain in some respects, and
particularly in this, that the 100
}
{\b0 \cf1 \f2 \i0 \fs20
{\b1 \cf1 \f2 \i1 \fs20
l
}
}
}
. is to be paid to any person who contracts the increasing epidemic after having
used the balls three times daily for two weeks. 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. Possibly it may be limited to persons catching the \u8220\'3fincreasing
epidemic\u8221\'3f (that is, the then prevailing epidemic), or any colds or
diseases caused by taking cold, during the prevalence of the increasing epidemic.
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
}
{\b1 \cf23 \f2 \i1 \fs20
*264
}
}
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 strikes me, I confess, that the true construction of this advertisement is that
100l. will be paid to anybody who uses this smoke ball three times daily for two
weeks according to the printed directions, and who gets the influenza or cold or
other diseases caused by taking cold within a reasonable time after so using it;
and if that is the true construction, it is enough for the plaintiff.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
I come now to the last point which I think requires attention - that is, the
consideration. 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.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
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
}
{\b1 \cf23 \f2 \i1 \fs20
*265
}
}
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.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
We were pressed upon this point with the case of
}
{\b0 \cf1 \f2 \i1 \fs20
Gerhard v. Bates
}
}
{\b0 \cf1 \f2 \i0 \fs16
20
}}}
}
, 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. Lord Campbell\rquote s judgment
when you come to examine it is open to the explanation, that the real point in that
case was that the promise, if any, was to the original bearer and not to the
plaintiff, and that as the plaintiff was not suing in the name of the original
bearer there was no contract with him. Then Lord Campbell goes on to enforce that
view by shewing that there was no consideration shewn for the promise to him. I
cannot help thinking that Lord Campbell\rquote s observations would have been very
different if the plaintiff in that action had been an original bearer, or if the
declaration had gone on to shew what a soci\u233\'3ft\u233\'3f anonyme was, and had
alleged the promise to have been, not only to the first bearer, but to anybody who
should become the bearer. There was no such allegation, and the Court said, in the
absence of such allegation, they did not know (judicially, of course) what a soci\
u233\'3ft\u233\'3f anonyme was, and, therefore, there was no consideration. 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.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
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.
\par
}
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
BOWEN, L.J.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
I am of the same opinion. We were asked to say that this document was a contract
too vague to be enforced.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
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.
}
{\b1 \cf23 \f2 \i1 \fs20
*266
}
}
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 was urged also, that if you
look at this document you will find much vagueness as to the persons with whom the
contract was intended to be made - that, in the first place, its terms are wide
enough to include persons who may have used the smoke ball before the advertisement
was issued; at all events, that it is an offer to the world in general, and, also,
that it is unreasonable to suppose it to be a definite offer, because nobody in
their senses would contract themselves out of the opportunity of checking the
experiment which was going to be made at their own expense. 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 pre-
}
{\b1 \cf23 \f2 \i1 \fs20
*267
}
}
viously contracted the influenza. I cannot so read the advertisement. It is
written in colloquial and popular language, and I think that it is equivalent to
this: \u8220\'3f100
}
{\b0 \cf1 \f2 \i0 \fs20
{\b1 \cf1 \f2 \i1 \fs20
l
}
}
}
. will be paid to any person who shall contract the increasing epidemic after
having used the carbolic smoke ball three times daily for two weeks.\u8221\'3f And
it seems to me that the way in which the public would read it would be this, that
if anybody, after the advertisement was published, used three times daily for two
weeks the carbolic smoke ball, and then caught cold, he would be entitled to the
reward. Then again it was said: \u8220\'3fHow long is this protection to endure? Is
it to go on for ever, or for what limit of time?\u8221\'3f I think that there are
two constructions of this document, each of which is good sense, and each of which
seems to me to satisfy the exigencies of the present action. 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. I think the
immunity is to last during the use of the ball. That is the way in which I should
naturally read it, and it seems to me that the subsequent language of the
advertisement supports that construction. It says: \u8220\'3fDuring the last
epidemic of influenza many thousand carbolic smoke balls were sold, and in no
ascertained case was the disease contracted by those using\u8221\'3f (not \
u8220\'3fwho had used\u8221\'3f) \u8220\'3fthe carbolic smoke ball,\u8221\'3f and
it concludes with saying that one smoke ball will last a family several months
(which imports that it is to be efficacious while it is being used), and that the
ball can be refilled at a cost of 5s. I, therefore, have myself no hesitation in
saying that I think, on the construction of this advertisement, the protection was
to enure during the time that the carbolic smoke ball was being used. My brother,
the Lord Justice who preceded me, thinks that the contract would be
}
{\b1 \cf23 \f2 \i1 \fs20
*268
}
}
sufficiently definite if you were to read it in the sense that the protection was
to be warranted during a reasonable period after use. I have some difficulty myself
on that point; but it is not necessary for me to consider it further, because the
disease here was contracted during the use of the carbolic smoke ball.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Was it intended that the 100
}
{\b0 \cf1 \f2 \i0 \fs20
{\b1 \cf1 \f2 \i1 \fs20
l
}
}
}
. should, if the conditions were fulfilled, be paid? The advertisement says that
1000l. is lodged at the bank for the purpose. Therefore, it cannot be said that the
statement that 100l. would be paid was intended to be a mere puff. I think it was
intended to be understood by the public as an offer which was to be acted upon.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
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
}
{\b0 \cf1 \f2 \i0 \fs20
{\b1 \cf1 \f2 \i1 \fs20
l
}
}
}
. 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.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
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.
}
{\b1 \cf23 \f2 \i1 \fs20
*269
}
}
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.\rquote s, judgment in
}
{\b0 \cf1 \f2 \i1 \fs20
Spencer v. Harding
}
}
.
}
{\b0 \cf1 \f2 \i0 \fs16
21
}}}
}
\u8220\'3fIn the advertisement cases,\u8221\'3f he says, \u8220\'3fthere 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, \u8216\'3fand we undertake to sell to the
highest bidder,\u8217\'3f the reward cases would have applied, and there would have
been a good contract in respect of the persons.\u8221\'3f As soon as the highest
bidder presented himself, says Willes, J., the person who was to hold the vinculum
juris on the other side of the contract was ascertained, and it became settled.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
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 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
}
{\b1 \cf23 \f2 \i1 \fs20
*270
}
}
acceptance of it to himself, performance of the condition is a sufficient
acceptance without notification.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
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 Mellish, L.J., in
}
{\b0 \cf1 \f2 \i1 \fs20
Harris\rquote s Case
}
}
{\b0 \cf1 \f2 \i0 \fs16
22
}}}
}
, and the very instructive judgment of Lord Blackburn in
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
{\b0 \cf1 \f2 \i0 \fs16
23
}}}
}
, in which he appears to me to take exactly the line I have indicated.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
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.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
A further argument for the defendants was that this was a
}
{\b1 \cf23 \f2 \i1 \fs20
*271
}
}
nudum pactum - that there was no consideration for the promise - that taking the
influenza was only a condition, and that the using the smoke ball was only a
condition, and that there was no consideration at all; in fact, that there was no
request, express or implied, to use the smoke ball. Now, I will not enter into an
elaborate discussion upon the law as to requests in this kind of contracts. I will
simply refer to
}
{\b0 \cf1 \f2 \i1 \fs20
Victors v. Davies
}
}
{\b0 \cf1 \f2 \i0 \fs16
24
}}}
}
and Serjeant Manning\rquote s note to
}
{\b0 \cf1 \f2 \i1 \fs20
Fisher v. Pyne
}
}
{\b0 \cf1 \f2 \i0 \fs16
25
}}}
}
, which everybody ought to read who wishes to embark in this controversy. The
short answer, to abstain from academical discussion, is, it seems to me, that there
is here a request to use involved in the offer. Then as to the alleged want of
consideration. The definition of \u8220\'3fconsideration\u8221\'3f given in Selwyn\
rquote s Nisi Prius, 8th ed. p. 47, which is cited and adopted by Tindal, C.J., in
the case of
}
{\b0 \cf1 \f2 \i1 \fs20
Laythoarp v. Bryant
}
}
{\b0 \cf1 \f2 \i0 \fs16
26
}}}
}
, is this: \u8220\'3fAny act of the plaintiff from which the defendant derives a
benefit or advantage, or any labour, detriment, or inconvenience sustained by the
plaintiff, provided such act is performed or such inconvenience suffered by the
plaintiff, with the consent, either express or implied, of the defendant.\u8221\'3f
Can it be said here that if the person who reads this advertisement applies thrice
daily, for such time as may seem to him tolerable, the carbolic smoke ball to his
nostrils for a whole fortnight, he is doing nothing at all - that it is a mere act
which is not to count towards consideration to support a promise (for the law does
not require us to measure the adequacy of the consideration). Inconvenience
sustained by one party at the request of the other is enough to create a
consideration. I think, therefore, that it is consideration enough that the
plaintiff took the trouble of using the smoke ball. But I think also that the
defendants received a benefit from this user, for the use of the smoke ball was
contemplated by the defendants as being indirectly a benefit to them, because the
use of the smoke balls would promote their sale.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Then we were pressed with
}
{\b0 \cf1 \f2 \i1 \fs20
Gerhard v. Bates
}
}
.
}
{\b0 \cf1 \f2 \i0 \fs16
27
}}}
}
In
}
{\b0 \cf1 \f2 \i1 \fs20
Gerhard v. Bates
}
}
{\b0 \cf1 \f2 \i0 \fs16
28
}}}
}
, which arose upon demurrer, the point upon which the action failed was that the
plaintiff did not allege that the
}
{\b1 \cf23 \f2 \i1 \fs20
*272
}
}
promise was made to the class of which alone the plaintiff was a member, and that
therefore there was no privity between the plaintiffs and the defendant.
}
Then Lord Campbell went on to give a second reason. If his first reason was not
enough, and the plaintiff and the defendant there had come together as contracting
parties and the only question was consideration, it seems to me Lord Campbell\
rquote s reasoning would not have been sound. It is only to be supported by reading
it as an additional reason for thinking that they had not come into the relation of
contracting parties; but, if so, the language was superfluous. The truth is, that
if in that case you had found a contract between the parties there would have been
no difficulty about consideration; but you could not find such a contract. Here, in
the same way, if you once make up your mind that there was a promise made to this
lady who is the plaintiff, as one of the public - a promise made to her that if she
used the smoke ball three times daily for a fortnight and got the influenza, she
should have 100
}
{\b0 \cf1 \f2 \i0 \fs20
{\b1 \cf1 \f2 \i1 \fs20
l
}
}
}
., it seems to me that her using the smoke ball was sufficient consideration. 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. If I say to a person, \
u8220\'3fIf you use such and such a medicine for a week I will give you 5l.,\
u8221\'3f and he uses it, there is ample consideration for the promise.
\par
}
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
A. L. SMITH, L.J.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
The first point in this case is, whether the defendants\rquote advertisement which
appeared in the Pall Mall Gazette was an offer which, when accepted and its
conditions performed, constituted a promise to pay, assuming there was good
consideration to uphold that promise, or whether it was only a puff from which no
promise could be implied, or, as put by Mr. Finlay, a mere statement by the
defendants of the confidence they entertained in the efficacy of their remedy. Or
as I might put it in the words of Lord Campbell in
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
{\b0 \cf1 \f2 \i0 \fs16
29
}}}
}
, whether this advertisement was mere waste paper. That is the first matter to be
determined. It seems to me that this advertisement reads as follows: \u8220\'3f100
}
{\b0 \cf1 \f2 \i0 \fs20
{\b1 \cf1 \f2 \i1 \fs20
l
}
}
}
. reward will be paid
}
{\b1 \cf23 \f2 \i1 \fs20
*273
}
}
by the Carbolic Smoke Ball Company to any person who after having used the ball
three times daily for two weeks according to the printed directions supplied with
such ball contracts the increasing epidemic influenza, colds, or any diseases
caused by taking cold. The ball will last a family several months, and can be
refilled at a cost of 5s.\u8221\'3f If I may paraphrase it, it means this: \
u8220\'3fIf you\u8221\'3f - that is one of the public as yet not ascertained, but
who, as Lindley and Bowen, L.JJ., have pointed out, will be ascertained by the
performing the condition \u8212\'3f \u8220\'3fwill hereafter use my smoke ball
three times daily for two weeks according to my printed directions, I will pay you
100l. if you contract the influenza within the period mentioned in the
advertisement.\u8221\'3f Now, is there not a request there? It comes to this: \
u8220\'3fIn consideration of your buying my smoke ball, and then using it as I
prescribe, I promise that if you catch the influenza within a certain time I will
pay you 100l.\u8221\'3f It must not be forgotten that this advertisement states
that as security for what is being offered, and as proof of the sincerity of the
offer, 1000l. is actually lodged at the bank wherewith to satisfy any possible
demands which might be made in the event of the conditions contained therein being
fulfilled and a person catching the epidemic so as to entitle him to the 100l. How
can it be said that such a statement as that embodied only a mere expression of
confidence in the wares which the defendants had to sell?
}
I cannot read the advertisement in any such way. In my judgment, the advertisement
was an offer intended to be acted upon, and when accepted and the conditions
performed constituted a binding promise on which an action would lie, assuming
there was consideration for that promise. The defendants have contended that it was
a promise in honour or an agreement or a contract in honour - whatever that may
mean. I understand that if there is no consideration for a promise, it may be a
promise in honour, or, as we should call it, a promise without consideration and
nudum pactum; but if anything else is meant, I do not understand it. I do not
understand what a bargain or a promise or an agreement in honour is unless it is
one on which an action cannot be brought because it is nudum pactum, and about
nudum pactum I will say a word in a moment.
\par
}
}
\u160\'3f
}
{\b1 \cf23 \f2 \i1 \fs20
*274
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
In my judgment, therefore, this first point fails, and this was an offer intended
to be acted upon, and, when acted upon and the conditions performed, constituted a
promise to pay.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
In the next place, it was said that the promise was too wide, because there is no
limit of time within which the person has to catch the epidemic. There are three
possible limits of time to this contract. The first is, catching the epidemic
during its continuance; the second is, catching the influenza during the time you
are using the ball; the third is, catching the influenza within a reasonable time
after the expiration of the two weeks during which you have used the ball three
times daily. It is not necessary to say which is the correct construction of this
contract, for no question arises thereon. Whichever is the true construction, there
is sufficient limit of time so as not to make the contract too vague on that
account.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Then it was argued, that if the advertisement constituted an offer which might
culminate in a contract if it was accepted, and its conditions performed, yet it
was not accepted by the plaintiff in the manner contemplated, and that the offer
contemplated was such that notice of the acceptance had to be given by the party
using the carbolic ball to the defendants before user, so that the defendants might
be at liberty to superintend the experiment. All I can say is, that there is no
such clause in the advertisement, and that, in my judgment, no such clause can be
read into it; and I entirely agree with what has fallen from my Brothers, that this
is one of those cases in which a performance of the condition by using these smoke
balls for two weeks three times a day is an acceptance of the offer.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
It was then said there was no person named in the advertisement with whom any
contract was made. That, I suppose, has taken place in every case in which actions
on advertisements have been maintained, from the time of
}
{\b0 \cf1 \f2 \i1 \fs20
}
}
{\b0 \cf1 \f2 \i0 \fs16
30
}}}
}
, and before that, down to the present day. I have nothing to add to what has been
said on that subject, except that a person becomes a persona designata and able to
sue, when he performs the conditions mentioned in the advertisement.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Lastly, it was said that there was no consideration, and that
}
{\b1 \cf23 \f2 \i1 \fs20
*275
}
}
it was nudum pactum. There are two considerations here. One is the consideration
of the inconvenience of having to use this carbolic smoke ball for two weeks three
times a day; and the other more important consideration is the money gain likely to
accrue to the defendants by the enhanced sale of the smoke balls, by reason of the
plaintiff\rquote s user of them. There is ample consideration to support this
promise.
}
I have only to add that as regards the policy and the wagering points, in my
judgment, there is nothing in either of them.
\par
}
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \i0 \fs20
Representation
\par
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Solicitors: J. Banks Pittman ; Field & Roscoe .
\par
}
}
\u160\'3f
\par
}
{\qr \b0 \cf1 \f2 \ri0 \i1 \fs20 \li0
Appeal dismissed. (H. C. J. )
\par
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4 B. & Ad. 621
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1 Roll. Abr. 6 (M.) .
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Law Rep. 8 Q. B. 286
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2 B. & Ad. 232
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}\sect }

Carlill v Carbolic Smoke Ball Co

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