smoke ball: inhale or puff?

The 1892 case of Carlill and the Carbolic Smoke Ball Company literally set the ball rolling for consumer protection acts. What meant to be nothing more than a marketing means of convincing influenza-stricken people to purchase the smoke ball to cure the flu backfired when a consumer by the name of Louisa Elizabeth Carlill sued the company, when she contracted the flu after faithfully using the smoke ball for 2 months.

The carbolic smoke ball is a peculiar one - it consisted of a rubber ball filled with powdered carbolic acid. The ball is to be squeezed, sending a puff of carbolic acid smoke through a tube inserted through your nose. The idea was to make your nose run and sneeze the cold away.

The company manufacturing the ball advertised it in a few newspaper publications, offering a $100 reward for anyone who used the ball as per instructions but still contracted the flu. They deposited $1000 in the Alliance Bank to prove that the money was there.

A certain Mrs Carlill, purchased the smoke ball in hopes of preventing the last flu epidemic. A strict follower of the instructions, she still managed to catch the virus. Since it was clear cut that it was ineffective, she went to the company to claim the reward. The company refused to reimburse her, claiming that it was an empty boast and they had no obligation to fulfill it. Mrs Carlill, unhappy with the decision made, took the matter to court.

The defendant appealed, arguing that there was no contract binding them to fulfill the claim made in the advertisement. The words merely expressed an intention of rewarding, not a promise. It was also to vague to be the basis of a contract, as there was no time horizon and no means of checking the use of the ball. For example, how long does a person need to use the ball before he contracts the flu in order to claim the reward? What was the reasonable time span? The court however dismissed the fact that there was no way of checking whether Mrs Carlill had been faithfully using the ball as per instructions. It would have been a good argument had it not been dismissed.

Second, they said the advert was a 'mere puff', not meant to have any legal consequences are understood not to by the public. In my opinion, they should have just stopped at claiming it would cure influenza, and exclude the reward part to avoid legal mess. They dug an even deeper hole for themselves when they deposited $1000 in Alliance Bank to 'show their sincerity'. This argument was then refuted by the court because it was obvious that an offer had been made to the world and the company is liable to fulfill the promises made. A contract was birthed when the ball was purchased and used.

Thirdly, they argued that such an offer could not have possibly to be made to the entire world. The court once again refuted this argument by stating that if the offer was clear and to a group, anyone abiding the terms could be deemed to have accepted it. It applied to persons who have used the ball for fortnight prior and after the advertisement was posted in the newspaper. There was no need for those accepting to say who they were when accepting the offer. One of the judges, Lord Bowen, put it like this: "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?"

The appeal was then dismissed with Mrs Carlill winning the appeal hands down. This case changed the face of law with the creation of unilateral agreement, and served as a constant reminder to companies to not be vague and deceitful.