Rationale:
An advertisement can constitute a unilateral contract, which can be accepted by fulfilling the conditions of the contract; no formal acceptance required. The determination of a serious offer will be determined from the words and actions. The terms of the contract (if vague) will be interpreted purposively from the contract. The offeror can determine how acceptance of offer will be made.
Facts of the case:
On Nov. 13, 1891, Defendants gave an advertisement regarding their product i.e. Carbolic Smoke Ball of which they claimed that person consuming this as mentioned in advertisement would never come in contact with influenza pandemic. Further, Defendants announced a reward of 100 pound for those who will come in contact with influenza after consuming carbolic smoke ball. Advertisement is as:
“£ 100 reward will be paid by the Carbolic Smoke Ball Co. to any person who contracts the increasing epidemic influenza, colds, or any diseases caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. £ 1,000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter. During the last epidemic of influenza many thousand Carbolic Smoke Balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the Carbolic Smoke Ball. One Carbolic Smoke Ball will last a family several months, making it the cheapest remedy in the world at the price – 10s. post free. The ball can be refilled at a cost of 5s. Address: Carbolic Smoke Ball Co., 27, Princes Street, Hanover Square, London, W.‖”
The plaintiff, believing in the accuracy of the statements appearing in the advertisement with regard to the efficacy of the smoke ball in cases of influenza, or as a preventive of that disease, purchased one and used it three times every day, as directed by the instructions, for several weeks, from the middle of November, 1891, until Jan. 17, 1892, at which latter date she had an attack of influenza.
Thereafter, husband wrote a letter to company for claiming the reward. However, defendants refused for the same and following which suit was filed by plaintiff.
Hawkins judge held defendants liable to pay money and further appeal was made by defendants against a decision of Hawkins, J.,
Legal Issues raised:
1. First the question raised was that advertisement was mere a puff.
2. Offer is not binding offer as it was said that it was not made with anybody in particular. Further quoting the case of Williams vs carwardine acceptance of the offer ought to be notified"
3. Language of the offer made was too vague for it to be a legal promise
4. The defendants has argued with great skill that this a nudum pactum – that there is no consideration\answer:
Lower Court Judgement:
Hawkins judge held defendants liable to pay money and futher appeal was made by defendants against a decision of Hawkins, J.,
Observation and Judgement:
Answer to issue 1: To know that it was a puff or a express promise. Justice Lindley said that the statements "£ 100 reward will be paid by the Carbolic Smoke Ball Co. to any person who contracts the increasing epidemic influenza, colds, or any diseases caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. £ 1,000 is deposited with the Alliance Bank, Regent Street,
showing our sincerity in the matter“ show that defendants have intention to pay 100 pounds to all those fulfilling instructions
Answer to issue 2: To this hon'ble judge Lindley replied that This offer is a continuing offer. It was never revoked, and if notice of acceptance is required the person who makes the offer receives the notice of acceptance contemporaneously with his notice of the performance of the conditions. But I doubt very much whether the true view is not, in a case of this kind, that the person who makes the offer shows by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance apart from notice of the performance.
Answer to issue 3: To this Justice Lindley replied: No doubt the language is vague and uncertain in some respects. I confess, that the true construction of this is that £ 100 will be paid to anybody who uses this smoke ball three times daily, for two weeks according to the printed directions, and who gets influenza, or a cold, or some other disease caused by taking cold, within a reasonable time after so using it. I think that is the fair and proper business construction of it. If that is the true construction, it is enough for the plaintiff. Therefore, I say no more about the vagueness of the document.
Answer to issue 4: The answer to that Ithink is this. It is quite obvious that, in the view of the defendants, the advertisers, a use of the smoke balls by the public, if they can get the public to have confidence enough to use them, will react and produce a sale which is directly beneficial to them, the defendants which is enough to constitute a consideration.
Based on the following observations Justice Lindley laid the judgement of Justice Harvey right and held defendants liable to pay. Similar were the observation's of Bowen .L.J and A.L. Smith L.J.
Appeal Bowen, L.J., said [(1893) 1 Q.B. 269]:
―[T]here can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification.‖
-Compilation and summary by Tushar Bawa*.
* Data is summarized and collected from various sources.
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