Carlill v Carbolic Smoke Ball Co: CA 7 Dec 1892

Unilateral Contract Liability

The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 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 pounds 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 pounds 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: ‘andpound;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 andpound;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.’

Lindley LJ, Bowen LJ, Smith LJ
[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
lip, Hamlyn, Justis, Bailii
England and Wales
CitedGerhard v Bates 1853
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 . .
CitedSpencer v Harding 1870
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 . .
CitedLaythoarp v Bryant 30-Apr-1936
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 . .
CitedHarris’s Case 1584
. .
CitedVictors v Davies 1854
. .
CitedBrogden v Metropolitan Railway Co HL 1877
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 . .

Cited by:
ConsideredPharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd QBD 16-Jul-1952
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 . .
ConsideredEntores Ltd v Miles Far East Corporation CA 1955
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 parent company of the Dutch party. It was . .
Referred toRe Consort Deep Level Gold Mines ex parte Stark 1897
. .
CitedStolley v Maskelyne 1898
. .
CitedJohnston v Boyes 1899
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 . .
CitedChaplin v Hicks CA 1911
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 . .
CitedReynolds v Atherton 1921
. .
CitedKennedy v Thomassen 1929
No binding contract comes into existence where the acceptance was never communicated or was communicated only to the acceptor’s own agent. . .
CitedRayfield v Hands 1958
. .
CitedRapalli v K L Take Ltd 1958
. .
CitedRobophone Facilities Ltd v Bank CA 1966
Parties to a contract should be free to stipulate not only primary obligations and rights but also the secondary rights and obligations, ie those which arise upon non-performance of any primary obligation by one of the parties to the contract, but . .
CitedUnited Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd Ltd; United Dominions Trust (Commercial) Ltd v Eagle Aviation Ltd CA 1968
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 . .
CitedConfetti Records (A Firm), Fundamental Records, Andrew Alcee v Warner Music UK Ltd (Trading As East West Records) ChD 23-May-2003
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 . .
CitedBowerman and Another v Association of British Travel Agents Ltd CA 21-Nov-1995
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 agent’s offices created a contract . .
CitedEsso Petroleum Limited v Commissioners of Customs and Excise HL 10-Dec-1975
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 . .
CitedSoulsbury v Soulsbury CA 10-Oct-2007
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 . .
CitedBlackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
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 . .
CitedDresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 02 November 2021; Ref: scu.183107