Carlill v Carbolic

Smoke Ball Co; CA

7 Dec 1892
August 22, 2016 dls 0 Contract,
References: [1893] 1 QB 256, [1892] 4
All ER Rep 127, [1892] 62 LJ QB 257,
[1892] 67 LT 837, [1892] 57 JP 325,
[1892] 41 WR 210, [1892] 9 TLR 124,
[1892] 4 R 176, [1892] EWCA Civ 1
Links: lip, Hamlyn, Justis, Bailii
Coram: Lindley LJ, Bowen LJ, Smith LJ
Ratio: The defendants advertised The
Carbolic Smoke Ball, in the Pall Mall
Gazette, saying 100 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 taking cold, after having used
the ball three times daily for two weeks
according to the printed directions. The
plaintiff bought one and used it, but
suffered influenza. Hawkins J had held
that she was entitled to recover the 100.
The defendants appealed.
Held: The appeal failed. A contract had
been made. The offer was a unilateral
contract capable of acceptance by anyone
satisfying the conditions. Notification of
performance was not required to show
acceptance. That the company intended
this as a serious offer was reflected by
their placing 1000 on deposit for the
purpose.
Lindley LJ said: We must first consider
whether this was intended to be a promise
at all, or whether it was a mere puff which
meant nothing. Was it a mere puff? My
answer to that question is No, and I base
my answer upon this passage: 1000 is
deposited with the Alliance Bank, shewing
our sincerity in the matter. Now, for what
was that money deposited or that statement
made except to negative the suggestion
that this was a mere puff and meant

nothing at all? The deposit is called in aid

by the advertiser as a proof of his sincerity
in the matter-that is, the sincerity of his
promise to pay this 100 in the event
which he has specified. I say this for the
purpose of giving point to the observation
that we are not inferring a promise; there is
the promise, as plain as words can make it.
There was ample consideration for the
promise.
This case cites:

Cited Gerhard v Bates ([1853] 2

EB 476)
The promoter of companies 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.
Held: Any promise had been made
to the original bearer . .

Cited Spencer v Harding ((1870)

LR 5 CP 561)
Willes J considered what promise
had been made where parties had
bid in response to an
advertisement, and the bidder
sought to enforce the contract: In
the advertisement cases, there
never was any doubt that the
advertisement amounted to a
promise . .

Cited Laythoarp v Bryant ([1836]

3 Scott 238, Commonlii, [1836]
EngR 652, (1836) 2 Bing NC 735,
(1836) 132 ER 283)
The Defendant purchased certain
leasehold premises at an auction,
and signed a memorandum of the
purchase on the back of a paper
containing the particulars of the
premises, the name of the owner,
and the conditions of sale: Held,
that the Defendant . .

Cited Harriss Case ([1584] Law

Rep 7 Ch 587)
..

Cited Victors v Davies ([1854] 12

MW 758)
..

Cited Brogden v Metropolitan

Railway Co HL ([1877] 2 AC 666)
The parties wished to contract to
sell and buy coal. A draft was
supplied by the railway company to
the supplier once head terms were
agreed. The draft was returned with
minor additions and the proposed
name of an arbitrator. The coal was
then . .

parent company of the Dutch party.

It was . .

Referred to Re Consort Deep

Level Gold Mines ex parte Stark
([1897] 1 Ch 575)
..

Cited Stolley v Maskelyne

([1898] 15 TLR 79)
..

Cited Johnston v Boyes ([1899] 2

Ch 73, [1899] 68 LJ Ch 425,
[1989] 80 LT 488, [1899] 47 WR
517, [1899] 43 Sol Jo 457)
There is no custom that a purchaser
at an auction can expect to have his
personal cheque for a ten per cent
deposit accepted. This applies even
to those with a good credit standing
as much as (here) for an apparent
pauper.
Cozens Hardy J said . .

Cited Chaplin v Hicks CA

((1911) 27 TLR 244, [1911] 2 KB
786, [1911-13] All ER 224, 80
LJKB 1292)
A woman who was wrongly
deprived of the chance of being one
of the winners in a beauty
competition was awarded damages
for loss of a chance. The court did
not attempt to decide on balance of
probability the hypothetical past
event of what would have . .

Cited Reynolds v Atherton

((1921) 125 LT 690)
..

Cited Kennedy v Thomassen

([1929] 1 Ch 426)
No binding contract comes into
existence where the acceptance was
never communicated or was
communicated only to the
acceptors own agent. . .

(This list may be incomplete)

This case is cited by:

Considered Pharmaceutical
Society of Great Britain v Boots
Cash Chemists (Southern) Ltd
QBD ([1952] 2 All ER 456, [1952]
2 QB 795, Bailii, [1953] EWCA
Civ 6)
The Society was responsible for
ensuring that sales of controlled
pharmaceuticals only took place
under the supervision of a
pharmacist. The defendants had
adopted supermarket style
arrangements where the purchaser
selected the goods and took them . .
Considered Entores Ltd v Miles
Far East Corporation CA ([1955] 2
All ER 394, [1955] 2 QB 327,
Bailii, [1955] EWCA Civ 3, [1955]
3 WLR 48, [1955] 1 Lloyds Rep
511, 99 Sol Jo 384)
The plaintiff traded from London,
and telexed an offer to purchase
cathodes to a company in Holland,
who signified their acceptance by
return, again by telex. Entores later
wanted to sue the defendant, the

Cited Rayfield v Hands ([1958] 2

All ER 194)
..

Cited Rapalli v K L Take Ltd

([1958] 2 Lloyds Rep 469)
..

Cited Robophone Facilities Ltd v

Bank CA ([1966] 3 All ER 128,
[1966] 1 WLR 1428)
Parties to a contract should be free
to stipulate not only primary
obligations and rights but also the
secondary rights and obligations,
i.e. those which arise upon nonperformance of any primary
obligation by one of the parties to
the contract, but . .

Cited United Dominions Trust

(Commercial) Ltd v Eagle Aircraft
Services Ltd Ltd; United
Dominions Trust (Commercial) Ltd
v Eagle Aviation Ltd CA ([1968] 1
All ER 194, [1968] 1 WLR 74)
An aircraft manufacturer was
obliged under contract to buy back
an aircraft from a hire purchase
company on three conditions. (1)
when the hire purchase company
foreclosed on the purchasers, (2)
where the manufacturer had been
given notice of the . .
Cited Confetti Records (A Firm),
Fundamental Records, Andrew
Alcee v Warner Music UK Ltd
(Trading As East West Records)
ChD (Bailii, [2003] EWCh 1274
(Ch), Times 12-Jun-03)
An agreement was made for the
assignment of the copyright in a
music track, but it remained
subject to contract. The assignor
later sought to resile from the
assignment.
Held: It is standard practice in the
music licensing business for a . .

Cited Bowerman and Another v

Association of British Travel
Agents Ltd CA (Times 24-Nov-95,
Independent 23-Nov-95, [1996]
CLC 451)
The claimant was to take part in a
school skiing trip. The first
operator was a member of the
defendant association, and ceased
trading through insolvency.
Held: The ABTA notice displayed
in the travel agents offices created
a contract . .

Cited Esso Petroleum Limited v

Commissioners of Customs and
Excise HL ([1976] 3 All ER 117,
Bailii, [1975] UKHL 4, [1976] 1
WLR 1)
The company set up a scheme to
promote their petrol sales. They
distributed coins showing the heads
of members of the English football
team for the 1970 World Cup. One
coin was given with each for
gallons of petrol. The
Commissioners said that the . .

Cited Soulsbury v Soulsbury CA

(Bailii, [2007] EWCA Civ 938_2,
Bailii, [2007] EWCA Civ 969,
Times 14-Nov-07, [2008] Fam Law
13, [2007] 3 FCR 811, [2007]
WTLR 1841, [2008] 1 FLR 90,
[2008] 2 WLR 834, [2008] Fam 1)
The claimant was the first wife of
the deceased. She said that the
deceased had promised her a
substantial cash sum in his will in
return for not pursuing him for
arrears of maintenance. The will
made no such provision, and she
sought payment from . .

Cited Blackpool and Fylde Aero

Club Ltd v Blackpool Borough
Council CA ([1990] 3 All ER 25,
[1990] 1 WLR 1195, Bailii, [1990]
EWCA Civ 13)

The club had enjoyed a concession

from the council to operate
pleasure flights from the airport
operated by the council. They were
invited to bid for a new concession
subject to strict tender rules. They
submitted the highest bid on time,
but the . .

Cited Dresdner Kleinwort Ltd

and Another v Attrill and Others
CA (Bailii, [2013] EWCA Civ 394,

WLRD, [2013] WLR (D) 156)

The bank appealed against
judgment against it on claims by
former senior employees for
contractual discretionary bonuses.
Held: The appeal failed. The banks
unilateral promise made within the
context of an existing employment
relationship to . .
(This list may be incomplete)