Litigation Before The Judgment in Carlill V Carbolic Smoke Ball Company - Submissions Before The Court of Appeal

Submissions Before The Court of Appeal

For the Carbolic Smoke Ball Co., two new barristers (Asquith QC had just become Home Secretary), Finlay QC and T. Terrell made similar submissions to the counsel in the Queen's Bench, but also relied on new authorities to argue the company out of any contract. They again argued that the contract was not like other reward cases, because catching the flu was not something you had control over, and that the words in the advertisement expressed a vague intention but in no way amounted to a promise. They said the terms were far too vague to make any contract. New arguments were that there was no "consideration" moving from the plaintiff - Mrs Carlill did nothing of value for the company - by getting the flu. They also argued that there was no communication of an intention by Mrs Carlill to accept the offer, and they relied on Brogden v. Metropolitan Ry. Co., where Lord Blackburn had said that to get a contract simply performing a private act is not enough to create obligations on other people. If one was honestly going to take the advertisement seriously, then it would allow someone that stole the Smoke Ball, and used it and got the flu, to get a reward. But that would be absurd because there would be no benefit given to the company. And, using the arguments from the Queen's Bench briefly, even if it was a contract between a purchaser and the company, it would still be void as a wagering (gambling) contract or as an insurance contract without the required form.

After these arguments were given, the court of appeal indicated they did not need further submissions on the wager or insurance point (they did not think the arguments were very good at all). Dickens QC and Wilfred Baugh Allen appeared for Mrs Carlill. They argued the advertisement was clearly an advertisement that looked like it should be acted on, and it was rich for the company to then say it was an empty boast. The advert was to the whole public, and a contract arose whenever the conditions in the ad were acted on. There needed to be no direct communication, because conduct in accordance with terms of an agreement can constitute acceptance. When an offer is made to all the world, nothing can be imported beyond the conditions initially stated, nor can notice before the event be required. The promise is to those who do the required acts, not to those who say and then do the act. The terms were not uncertain, nor were the parties uncertain, and it should be clear that people who lawfully acquired a smokeball could benefit. There would be no reason for a limitation to people who got the smokeball as a gift, because an increased sale being a benefit to the defendants, though effected through a middleman, and the use of the balls must be presumed to serve as an advertisement and increase the sale. The amount of time the smokeball should last (and the company be bound by) was a matter of construction, of which several were possible (a fortnight, till the flu epidemic ends). The best would be a reasonable period of a fortnight. The consideration was good and the case of Gerhard v. Bates did not undermine it.

Finlay QC then replied, again stressing the absurdity of holding the company liable on a such a vague advertisement, and especially because there was no real request to use the smokeball in the advert. That a contract should be completed by a private act is against the language of Lord Blackburn in Brogden v. Metropolitan Ry. Co.. The use of the ball at home stands on the same level as the writing a letter which is kept in the writer's drawer. There was no service done for the company. On the issue of time limits, the fact that it is difficult to decide should show, submitted Finlay QC, that the fair result is no contract at all.