Carlill V Carbolic Smoke Ball Company - Significance

Significance

Carlill is frequently cited as a leading case in the common law of contract, particularly where unilateral contracts are concerned. This is perhaps due to the ingenuity of Counsel for the Defendant in running just about every available defence, requiring the court to deal with these points in turn in the judgment.

It provides an excellent study of the basic principles of contract and how they relate to every day life. The case remains good law. It still binds the lower courts of England and Wales and is cited by judges with approval. However, in addition to the contractual remedy afforded to users, the same facts would give rise to a number of additional statutory remedies and punishments were an individual to place an advert in the same terms today.

Firstly, misleading advertising is a criminal offence. Under the Consumer Protection from Unfair Trading Regulations (secondary legislation, passed under the European Communities Act 1972), regulation 5 states that a commercial practice is misleading...

"if it contains false information and is therefore untruthful... or if it or its overall presentation in any way deceives or is likely to deceive the average consumer... even if the information is factually correct"

...in relation to a long list of actions and omissions by sellers. Misleading practices are unfair (r 3) and unfair practices are prohibited (r 4). They are also criminal offences (rr 8-18) and overseen by stringent enforcement mechanisms (rr 19-27). Sellers still have a defence of legitimate "puffery", or that their representations could not be taken seriously (e.g. "this washing powder makes your clothes whiter than white!").

Secondly, although it was not discussed in the case, there was evidence at the time that using the smoke ball actually made people more vulnerable to the flu (carbolic acid was put on the poisons register in 1900). The General Product Safety Regulations which are part of a European Union wide consumer protection regime (Directive 2001/95/EC) again provide criminal penalties for unsafe products.

Thirdly, the Consumer Protection Act 1987 (which is also part of EU wide regulation under Directive 85/374/EEC) creates a statutory tort of strict liability for defective products that cause any kind of personal injury or death, or damage over £100. This is the primary method for individuals to get compensation for any loss resulting from products. Similar regimes for product liability have developed around the world through statute and tort law since the early twentieth century, one of the leading cases being Donoghue v Stevenson.

Fourthly, under the Enterprise Act 2002, s 8, as in most developed countries, industry members form a trade associations. Businesses are expected to collectively regulate one another by drawing up Codes of Practice and have mechanisms for enforcement before tort or criminal law does.

Viewed with a modern eye, many have argued that Carlill should be seen as redolent of another era, not a foundational case in the law of contract. For instance, Professor Hugh Collins writes the following.

"The amusing circumstances of the case should not obscure the surprising extent to which the court was prepared to conceive social relations in terms of contracts. The parties to the alleged contract had never met or communicated with each other directly. Nor had they exchanged goods, money or services between themselves. The law of contract is used by the court as an instrument for discouraging misleading and extravagant claims in advertising and for deterring the marketing of unproven, and perhaps dangerous pharmaceuticals... The judges run through a shopping-list of questions: Was there a promise? Was the promise serious and intended to be acted upon? Was the promise sufficiently definite and certain? Was the promise accepted by the plaintiff? Did the plaintiff perform some action in exchange for the promise?... The generality and abstraction of the rules permit both the extensive utilization of and its application to the case, without any discussion of such matters as the moral claims of the parties, the nature of the market for pharmaceuticals and the problems generated by misleading advertising... Its doctrinal integrity helps to achieve legitimacy, because the law can be presented as objective and neutral, not a matter of politics or preference, but a settled body of rules and principles, legitimated by tradition and routine observance, and applied impartially and fairly to all citizens."

Professor A. W. B. Simpson, in an article entitled 'Quackery and Contract Law' gave the background of the case as part of the scare arising from the Russian influenza pandemic of 1889-90. He points out that nobody knew what the flu actually was yet, nor how to prevent or cure it. After it was patented, the Carbolic Smoke Ball had in fact become rather popular in many esteemed circles including the Bishop of London who found it "has helped me greatly". The inventor, Frederick Roe, had advertised heavily when the epidemic hit London, which was getting extensive press coverage. But in the Pall Mall Gazette (just one instance where he put ads) there were many, many more quack remedies for misunderstood problems. Once the case had been decided by the Court of Appeal, it met with general approval, but especially so from the medical community. The Pharmaceutical Society of Great Britain had been fighting an ongoing battle against quack remedies, and had wanted specifically to get carbolic acid on the poisons register since 1882. Although without sympathy for the Carbolic Smoke Ball Company itself, Simpson casts doubt on whether Carlill was rightly decided.

"The analytical problems arose in a particularly acute form in the smoke ball case. Thus it seemed very peculiar to say that there had been any sort of agreement between Mrs Carlill and the company, which did not even know of her existence until January 20, when her husband wrote to them to complain. There were indeed earlier cases permitting the recovery of advertised rewards; the leading case here was Williams v Carwardine, where a reward of £20 had been promised by a handbill for information leading to the conviction of the murderer of Walter Carwardine, and Williams, who gave such information, successfully sued to recover the reward. But this was long before the more modern doctrines had become so firmly embodied in legal thinking, and in any event the case was quite distinguishable. It concerned a reward, whereas Mrs Carlill was seeking compensation. There could be at most only a few claimants for this, but there is no limit on the number of those who may catch influenza. Furthermore, the Carbolic Smoke Ball Company had had no chance to check the validity of claims, of which there could be an indefinite number; much was made of this point in the argument. But the judges were not impressed with these difficulties, and their attitude was no doubt influenced by the view that the defendants were rogues. They fit their decision into the structure of the law by boldly declaring that the performance of the conditions was the acceptance, thus fictitiously extending the concept of acceptance to cover the facts. And, since 1893, law students have been introduced to the mysteries of the unilateral contract through the vehicle of Carlill v Carbolic Smoke Ball Co. and taught to repeat, as a sort of magical incantation of contract law, that in the case of unilateral contracts performance of the act specified in the offer constitutes acceptance, and need not be communicated to the offeror."

In a much more recent American case from the Southern District of New York, Leonard v Pepsico, Inc, Judge Kimba Wood wrote,

"Long a staple of law school curricula, Carbolic Smoke Ball owes its fame not merely to "the comic and slightly mysterious object involved"... but also to its role in developing the law of unilateral offers."

Mr Leonard had sued Pepsi to get a fighter jet which had featured in a TV ad. Supposedly one might get the jet if one had acquired loads of "Pepsi Points" from buying the soft drink. It was held that Mr Leonard could not get the fighter jet, because the advertisement was not serious. Cashing in "Pepsi Points" could certainly mean various prizes, but the fighter jet thing was really a joke. Kimba Wood J distinguished the case on a number of different grounds from Carlill, but it is clear that not all advertisements are always to be taken seriously.