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. John brought a claim to court. The barristers representing her argued that the advertisement and her reliance on it was a contract between her and the company, and so they ought to pay.
The company argued it is not a serious contract. How does one interpret vague terms? 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. 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 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. We were pressed upon this point with the case of Gerhard v Bates ,  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 '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.
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.
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. Five main steps in his reasoning can be identified. First, he says that the contract was not too vague to be enforced, because it could be interpreted according to what ordinary people would understand by it. He differed slightly from Lindley LJ on what time period one could contract flu and still have a claim Lindley LJ said a "reasonable time" after use, while Bowen LJ said "while the smoke ball is used" , but this was not a crucial point, because the fact was that Mrs.
Carlill got flu while using the smoke ball. Third, he said that although an offer was made to the whole world, the contract was not with the whole world. Therefore, it was not an absurd basis for a contract, because only the people who used it would bind the company. Fourth, he says that communication is not necessary to accept the terms of an offer; conduct is and should be sufficient.
Fifth, good consideration was clearly given by Mrs. Carlill because she went to the "inconvenience" of using it, and the company got the benefit of extra sales. We were asked by the council for the defendants to say that this document was a contract too vague to be enforced.
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. 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 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 previously contracted the influenza.
I cannot so read the advertisement. Is it to go on for ever, or for what limit of time? 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. 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 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. Was it intended that the l. The advertisement says that l. Therefore, it cannot be said that the statement that l.
I think it was intended to be understood by the public as an offer which was to be acted upon. 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 l. 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.
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. If this is an offer to be bound, then it is a contract the moment the person fulfils the condition.
Court of Appeal affirmed, found for P, contract valid. Issues: How does an offer for a reward become binding? What kind of notification is required in cases where the offer can be accepted by performance only? In cases where the offer can be accepted by performance only, notification of acceptance does not need to precede the performance offeror does not expect and does not require notice of the acceptance apart from notice of the performance.
Reasoning: In offers of rewards, they are offers to anybody who performs the conditions named, and anybody who does perform the condition accepts the offer. It is not possible to make an offer to the world.
There was no notification of acceptance. The wording was too vague to constitute an offer since there was no stated time limit as to catching the flu.Asquith , lost its argument at the Queen's Bench. The company did not have limited liability , which could have meant personal ruin for Mr. Does performance of the conditions advertised in the paper constitute acceptance of an offer?
Under these facts, the defendant impliedly indicated that it did not require notification of acceptance of the offer. They are also criminal offences rr and overseen by stringent enforcement mechanisms rr After it was patented, the Carbolic Smoke Ball had in fact become rather popular in many esteemed circles including the Bishop of London who found it "has helped me greatly".
In cases where the offer can be accepted by performance only, notification of acceptance does not need to precede the performance offeror does not expect and does not require notice of the acceptance apart from notice of the performance. The defendants would have value in people using the balls even if they had not been purchased by them directly. Carlill got flu while using the smoke ball.
Leonard had sued Pepsi to get a fighter jet which had featured in a TV ad.
The company argued it was not a serious contract. 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. Businesses are expected to collectively regulate one another by drawing up Codes of Practice and have mechanisms for enforcement before tort or criminal law does. The terms of the contract if vague will be interpreted purposively from the contract.
Roe left the management of the new company to other new subscribers and directors, who did not pursue such an aggressive advertising policy. 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. Finlay, a mere statement by the defendants of the confidence they entertained in the efficacy of their remedy. First, it is said no action will lie upon this contract because it is a policy. It is not a contract made with all the world. He differed slightly from Lindley LJ on what time period one could contract flu and still have a claim Lindley LJ said a "reasonable time" after use, while Bowen LJ said "while the smoke ball is used" , but this was not a crucial point, because the fact was that Mrs.
After it was patented, the Carbolic Smoke Ball had in fact become rather popular in many esteemed circles including the Bishop of London who found it "has helped me greatly". Fourthly, under the Enterprise Act , s 8, as in most developed countries, industry members form a trade associations.
Cashing in "Pepsi Points" could certainly mean various prizes, but the fighter jet thing was really a joke. Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used it three times daily for nearly two months until she contracted the flu on 17 January