Carbolic Smoke Ball
The year is 1892 and Solicitors Journal reports on what will become a seminal law school case
The Court of Appeal have affirmed the decision of Hawkins, J., in Carlill v. The Carbolic Smoke Ball Co., and the case will henceforth be the leading authority as to the validity of contracts by advertisement.
The objections that the contract was either a wagering contract or a contract of insurance, and in the latter case void under 14 Geo. 3, c. 48, were scarcely dealt with, Lindley, L.J., contenting himself with saying that he agreed with the judgment of Hawkins, J., on these points. And that the company’s offer, which was an offer by advertisement to pay £100 to anyone who should contract influenza after using a smoke ball in the prescribed manner, was intended simply as a puff, and not as an offer which the company meant to be taken seriously, was held to be disproved by their declaration that £1,000 had been deposited at a bank as a guarantee of their sincerity.
The court had, therefore, to deal merely with the question whether, under the circumstances, there was in fact a contract. That the offer is not made, in the first instance, to an ascertained person is, of course, no objection. The various advertisement cases, of which Williams v. Carwardine (4 B. & Ad. 621) is the earliest, all shew this. And the Court of Appeal disallowed, too, the objection that Mrs. Carlill had not notified her acceptance of the offer. In general, of course, it is essential that an offer should be not merely accepted, but the acceptance communicated to the person making it.
The acceptance is a mental act, and, to use Lord Blackburn’s quotation from an old judge, “it is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is.” But it requires no supernatural assistance to prove that there has been an acceptance when this is shewn by an overt act; and hence, as Lord Blackburn on the same occasion pointed out (Brogden v. Metropolitan Railway Co., 2 App. Cas., at p.691), whenever the offer contains an implied request that acceptance shall be signified by doing some particular thing, the doing of the thing in pursuance of the offer sufficiently completes the contract.
This governs cases such as that in question, and, of course, as a matter of fact, no advertiser expects to receive notification that his offer has been accepted, nor are such notifications sent. Bowen, L.J., gave an illustration. A man who wants to earn the reward offered for a lost dog does not sit down and write a letter. He looks for the dog.
As to the question of consideration, no difficulty was felt, but there seems to have been an element of danger in the objection that the contract was too vague. In terms the public were guaranteed against influenza for ever, but this could not have been meant. What was meant remains doubtful, as the court did not agree, but a contract is not vague because its construction is uncertain. Either the disease must have been contracted while using the ball – as Bowen, L.J., held – or, in the opinion of Lindley, L.J., within a reasonable time after, the length of such time being a question for the jury, assisted by the evidence of experts as to the nature of the smoke ball and the probable duration of its effect. But in either case the contract would be certain, and either construction would do for Mrs. Carlill. Advertisers will probably be more cautious for the future in their offers to the public.