Carlill v. Carbolic Smoke Ball Co. [1891-4] All ER 127
Carbolic smoke ball made a product called the smoke ball which they claimed cures influenza. The company in its advertisement of the product stated that they would give a 100£ to anyone who used the product according to the instructions and still got influenza. The company deposited an amount of $1000 in the bank to be used for the rewards. Carlill upon seeing the advertisement, used the product but got influenza. She brought a suit against Carbolic Smoke Ball to recover the 100£.
At the Queens Bench, the court held that Carlill was entitled to the 100£ reward. Carbolic Smoke Ball appealed the ruling.
1. Whether or not the advertisement by Carbolic Smoke Ball was meant to be a binding promise or just a sales strategy.
1. Carbolic Smoke Ball’s case was dismissed and it was held that Carlill is entitled to recover the 100£.
The court reasoned that there was an express promise by Carbolic Smoke Ball Co to give a reward of 100£ to anyone who contracted influenza after using their smokeball. Justice Lindley advanced that the company’s deposit of 1000 £ into the bank was reflective of their seriousness to be bound by the words in their advertisement, which contained a reward of 100£.
Comment: On acceptance of an offer contained in an advertisement
Per Lord Bowen,
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 acceptance of it to himself, performance of the condition is a sufficient acceptance without notification.
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.