Carlill v Carbolic Smoke Company

Carlill v Carbolic Smoke Company

[1893] 1 QB 256

Court of Appeal

Facts:

Advertisement for preventative measure against influenza. CSC offered £100 to anyone who contracted the flu while using their “medical” device. C bought one, used as directed on the advert and still became ill. C claiming to recover the £100 promised.

Legal Issues:

Whether the advertisement created an offer of contract.

What type of contract arose, if any.

Whether C’s actions constitute a response to the contract.

Whether C needed to notify CSC of her intention to use the product.

Claimants Arguments:

The advert made a contract of warranty. This was breached by the claimant becoming ill, so the defendant must pay the damages.

Money was set aside by the defendant, indicating intention.

Advertisement was an offer of contract.

The claimant accepted the offer when they bought and used the product as directed.

The company benefited from the sale due to the advert, so the contract is valid.

The advert is not vague.

Defence Arguments:

No contract created through the advert that is enforceable by law. Carlill had no control over getting influenza and the advert was too vague.

No communication to accept the offer of contract.

Advert not a request for entering contract.

The ball could not be checked if it had been used correctly.

If there were a contract, it was now void as it was made by a wager of an unknown fact (illegal). Furthermore, if it were an insurance, the claimant’s personal details would have had to have been collected by the defendant beforehand and the events would have to be foreseen.

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Judgement:

Claimant entitled to £100, as well as court costs.

Lindley LJ:

Obviously not a bet / wager as money was deposited into the bank. Even though it is vague, the advert is a promise to anyone who performs the conditions, which Carlill did. Notification of acceptance can be given at the same time as informing them of the breach of contract.

Bowen LJ and Smith LJ concur.