Carlill v Carbolic Smoke Ball Company [1892]

Carlill v Carbolic Smoke Ball Company [1892] a foundational case in the law of contract.

Court Court - of Appeal (Civil Division)
Date decided 7 December 1892
Citations [1892] EWCA Civ 1, [1893] 1 QB 256

Law of contract. Communication of an offer.
The Carbolic Smokeball Company claimed that if their "smokeball" was taken in the specified manner, the user would not contract influenza. Anyone that did contract the illness was entitled to 100 pounds. To show their sincerity in the matter the company deposited 1000 pounds in the Alliance Bank, Regent street

The advert was placed. The question is could it contain an offer?

Mrs. Louisa Carlill stumbled across an advert for the Smokeball in the Pall Mall Gazette. She purchased the product and took it as intstructed.

However, Mrs. Carlill still contracted influenza...
Mrs. Carlill claimed an award. The Smokeball refused to pay, they said a 100 pounds offer was a mere marketing puff and not intended to have any basis in law of contract.

Mrs.Carlill argued that a contract existed between her and the company.
The company argued that no contract could exist since the advert merely constituted an invitation to treat, not an offer.

The majority judgement of the case disagreed with the Company's arguments.
It was decided that the advert was not an invitation to treat (a pure gimmick) but an offer that could be taken seriously. The court also went on to say that there could be an offer to the whole world and that anyone hearing the offer could accept it.
The deposit of 1000 pounds demonstrated an intention to create legal relations. And, it was said Mrs. Carlill acted to her detriment in using the Smokeball as intructed and so this was considered sufficient consideration.

So, it was decided that a contract did exist between the company and Mrs.Carlill and she subsequently won the case.

The contractual elements discussed in this case have since been used in all cases when determining the formation of a unilateral contract.

ps. Mrs. Carlill died at the age of 96 in 1942 of influenza.



This case is frequently cited as a leading case in the common law of contract. It provides an excellent study of the basic principles of contract and how they relate to every day life.

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 [14] (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).[15] 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 smokeball actually made people more vulnerable to the flu (carbolic acid was put on the poisons register in 1900). The General Product Safety Regulations [16] which are part of a European Union wide consumer protection regime (Directive 2001/95/EC[17]) 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[18]) 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.