Counsels' Submissions
Herbert Henry Asquith QC (the future Prime Minister) and Herman William Loehnis represented the Carbolic Smoke Ball Co. They made three submissions. First, there was no contract, because Carbolic had not intended to create an obligation enforceable by law upon themselves, shown by the wide terms in which the advertisement was expressed. The advertisement said the "reward" was for anyone getting influenza "after having used the ball", which could mean any time in someone's life. It would be absurd to impose an obligation on the company for some who got the flu years after using the ball. Moreover, contracting the flu was not something in the plaintiff's control, and so this case should be distinguished from reward cases like Williams v Carwardine where someone positively does something to deserve a reward. Second, even if a contract existed, it should be void because of the Lottery Act, which said "wagering contracts" (gambling contracts) were unlawful and void. This was a wager, gambling, like a lottery, as in a number of cases, such as Brogden v Marriott Rourke v Short and Taylor v Smetten. Third, even if it were contract and not a wagering contract, it still would be void because it would be an insurance contract that failed to follow the proscribed form of stating people's names.
William Graham and John Patrick Murphy QC for Mrs Carlill responded to the submissions by first arguing that there was a contract. The contract was a warranty to prevent disease that sounded in liquidated (money) damages. The advertisement was an offer. It was accepted when the conditions of the offer were performed. This could be seen in Denton v Great Northern Ry. Co. and England v Davidson Second, it was not a wager contract, and therefore not void, because Thacker v Hardy said wagers are about one side winning and another losing. Here, even if Mrs Carlill did not "win" £100, Carbolic won nothing. Third, using the smokeball could not be an insurance policy, because it was not shaped as an insurance policy.
Read more about this topic: Litigation Before The Judgment In Carlill V Carbolic Smoke Ball Company, Queen's Bench