Louisa Carlill v Carbolic Smoke Ball Company PDF

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The Parties.

Plaintiff: Louisa Carlill Defendant: Carbolic Smoke Ball Company Facts. The Carbolic Smoke Ball Co. manufactured a product known as the "smoke ball," which claimed to be a treatment for influenza and a variety of other diseases. The smoke ball was made of rubber and had a tube attached to it. It was full of carbolic acid. To release the vapours, the tube would be put into the user's nose and squeezed at the bottom. The nose would flow, purportedly to wash away viral infections. On November 13, 1891, the Company advertised in the Pall Mall Gazette and other newspapers that it would pay £100 to anybody who became ill with influenza after taking their product according to the directions supplied with it: The Carbolic Smoke Ball Company will pay a £100 reward to anyone who develops the expanding pandemic influenza colds, or any ailment caused by taking cold, after using the ball three times daily for two weeks, according to the printed directions included with each ball. £1000 is placed with the Alliance Bank on Regent Street to demonstrate our seriousness in the problem. Thousands of carbolic smoke balls were sold as influenza preventives during the previous pandemic, and the disease was not transmitted by anybody who used the carbolic smoke ball.

At the price of 10 cents. post free, one carbolic smoke ball will last a family several months, making it the cheapest medicine in the world. The ball can be refilled for 5 cents. Address: 27 Princes Street, Hanover Square, London. Louisa Carlill read the ad, bought one of the balls, and used it three times a day for nearly two months until she got the flu on January 17, 1892. She received a cheque for £100 from the Carbolic Smoke Ball Company. They rejected two letters from her solicitor husband. On a third request for her reward, they responded with an anonymous letter saying that if used properly, the company had complete confidence in the smoke ball's efficacy, but that "to protect themselves against all fraudulent claims," she would need to come to their office each day to use the ball and be checked by the secretary. Carlill filed a lawsuit in court. The barristers who represented her contended that the advertising and her reliance on it constituted a contract between the firm and her, and so the company should pay. The corporation said it was not a serious contract.

Law and principle. Offer The first principle in this case is offer. Offer means an agreement between two or more parties is constituted by a proposal. Regarding section 4(1) of Contract Act 1950, the communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. In this case, advertisement is an attempt to induce an offer so it is only an invitation to treat and not an offer. Another case that we can look at is the case of Majumder v Attorney General of Sarawak (1967) in which is the court held that an advertisement in the newspaper for the post of doctor was not an offer but an invitation to treat only. offer was general as Carbolic Smoke Ball made it to the public, this was offers to anybody who performs the conditions named in the advertisement, and anybody who does perform the condition accepts the offer, promise is binding even though not made to anyone in particular. Carbolic stated that “100 l 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 catching a cold after having used the ball three times daily for two

weeks according to the printed directions supplied with each ball. 1000 l. is deposited with the Alliance Bank, Regent Street, shewing our sincerity in the matter.” Section 2(a) of the Contract Act of 1950 stated that when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to the act or abstinence, he is said to make a proposal. Carlill v Carbolic Smoke Ball Co [1893] is a case in which the manufacturer's offer to sell products to the public via advertisement is an ITT. Mrs Carlill bought some smoke balls and used them according to the instructions, but she got the illness. She attempted to collect the claimed £100 incentive. Because there was no clear time restriction for contracting the virus, the phrase was too ambiguous to constitute an offer. Acceptance Next, acceptance which is simply some indication by the person receiving the offer that the offer is accepted. In Section 4(2) of Contract Act that the communication is complete as Section 4(2)(a): against the proposer, when it is put in a course of transmission to him so as to be out of the power of the acceptor and Section 4(2)(b):as again the acceptor, when it comes to the knowledge of the proposer. In the Carlill case, Carlill accepted the offer by buying the smoke ball and use it as directed, three times a day from November 20, 1891 to January 17 1892 when she was attacked by influenza. 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, then the person who makes the offer gets the notice of acceptance contemporaneously with his notice of the performance of the condition before his offer is revoked. According to Section 2(b) of the Contract Act of 1950, a proposal is said to be accepted when the person to whom it is made indicates his agreement to it: a proposal, when accepted, becomes a promise. Although notice of acceptance is generally necessary, the offeror may opt out of this need and had done so in this case. It was implied here that the offeree (Mrs Carlill) did not need to indicate her willingness to accept; rather, acceptance happened via the fulfilment of the specified activities (using the smoke ball). Consideration

Consideration is when, at desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or abstain from doing, something, such act or abstinence or promise is called a consideration for the promise. Based on Section 26 of Contract Act 1950, an agreement without a consideration is void. When a promise enters into a sale and purchase agreement, the contract is legally binding even though no payment has been made yet. This happened to Price v Easton (1833) too when Easton made a contract with X that in return for X doing work for him, Easton would pay Price £19. X did the work but Easten did not pay, so Price sued. It was held that Price's claim must fail, as he had not provided consideration. 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's use of them. There is ample consideration to support this promise. Section 2(d) of CA provides a definition of consideration which is when, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise. There was consideration; Mrs Carlill's difficulty in utilising the smokeball as recommended was adequate consideration. Furthermore, the Carbolic Smoke Ball benefited from having individuals utilise the smoke ball....