Carlill v. Carbolic Smoke Ball Company
Encyclopedia
Carlill v Carbolic Smoke Ball Company [1893] EWCA Civ 1 is an English contract law
decision by the Court of Appeal, which held an advertisement containing certain terms to get a reward constituted a binding unilateral offer that could be accepted by anyone who performed its terms. It is notable for its curious subject matter and how the influential judges (particularly Lindley LJ and Bowen LJ) developed the law in inventive ways. Carlill is frequently discussed as an introductory contract case, and may often be the first legal case a law student studies.
The case concerned a flu
remedy called the "carbolic smoke ball". The manufacturer advertised that buyers who found it did not work would be awarded £100, a considerable amount of money at the time. The company was found to have been bound by its advertisement, which it construed as creating a contract. The Court of Appeal held the essential elements of a contract were all present, including offer and acceptance
, consideration
and an intention to create legal relations.
and a number of other diseases, in the context of the 1889-1890 flu pandemic (estimated to have killed 1 million people). The smoke ball was a rubber ball with a tube attached. It was filled with carbolic acid
(or phenol). The tube would be inserted into a user's nose and squeezed at the bottom to release the vapours. The nose would run, ostensibly flushing out viral infections.
The Company published advertisements in the Pall Mall Gazette
and other newspapers on November 13, 1891, claiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions set out in the advertisement.
Mrs Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used it three times daily for nearly two months until she contracted the flu on 17 January 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, a solicitor
. On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims" they would need her to come to their office to use the ball each day and be checked by the secretary. Mrs Carlill brought a claim to court. The barristers representing her argued that the advertisement and her reliance on it was a contract between her and the company, and so they ought to pay. The company argued it was not a serious contract.
gave the first judgment, after running through the facts again. He makes short shrift of the insurance and wagering contract arguments that were dealt with in the Queen's Bench.
Already, it is apparent which way that Lindley LJ will decide. Judges often differ in their style, and in 19th century cases it was more usual to be short and direct, giving the decision first and then the reasons. Since the later 20th century, judges have made their opinions ever longer and wordier, often dealing with all sides and points of argument before reaching conclusions. He follows on with essentially five points. First, the advert was not "mere puff
" as had been alleged by the company, because the deposit of £1000 in the bank evidenced seriousness. Second, the advertisement was an offer to the world. Third, communication of acceptance is not necessary for a contract when people's conduct manifests an intention to contract. Fourth, that the vagueness of the advert's terms was no insurmountable obstacle. And fifth, the nature of Mrs Carlill's consideration (what she gave in return for the offer) was good, because there is both an advantage in additional sales in reaction to the advertisement and a "distinct inconvenience" that people go to use a smoke ball.
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...
...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.
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.
In a much more recent American case from the Southern District of New York, Leonard v Pepsico, Inc
, Judge Kimba Wood
wrote,
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.
, which could have meant personal ruin for Mr Roe. In his submissions to the Court of Appeal, Finlay QC had used that as an argument against liability. He said that 10,000 people might now be sniffing at smoke balls hoping for their £100, and it would be a travesty to inflict insolvency on this one unfortunate company. But this did not happen at all. In a new advert on February 25, 1893 in the Illustrated London News
, Mr Roe cunningly turned the whole lost case to his advantage. He described the culpable advert, and then said,
In the advertisement's small print were some restrictive conditions, with a period of 3 months to use the ball and claim, showing that legal advice had been adhered to. Mr Roe left the management of the new company to other new subscribers and directors, who did not pursue such an aggressive advertising policy. By 1895 the company had fallen on harder times, and it had to be wound up in 1896. Simpson suggests that the new management "had failed to grasp the fact that vigorous advertising was essential to success in the field of quack medicine." Mr Roe himself died at the age of 57 on June 3, 1899 of tuberculosis
and valvular heart disease.
Mrs Louisa Carlill, however, lived until she was 96. She died on March 10, 1942, according to her doctor, Mr Joseph M. Yarman, principally of old age. But there was one other cause noted: influenza.
English contract law
English contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...
decision by the Court of Appeal, which held an advertisement containing certain terms to get a reward constituted a binding unilateral offer that could be accepted by anyone who performed its terms. It is notable for its curious subject matter and how the influential judges (particularly Lindley LJ and Bowen LJ) developed the law in inventive ways. Carlill is frequently discussed as an introductory contract case, and may often be the first legal case a law student studies.
The case concerned a flu
Influenza
Influenza, commonly referred to as the flu, is an infectious disease caused by RNA viruses of the family Orthomyxoviridae , that affects birds and mammals...
remedy called the "carbolic smoke ball". The manufacturer advertised that buyers who found it did not work would be awarded £100, a considerable amount of money at the time. The company was found to have been bound by its advertisement, which it construed as creating a contract. The Court of Appeal held the essential elements of a contract were all present, including offer and acceptance
Offer and acceptance
Offer and acceptance analysis is a traditional approach in contract law used to determine whether an agreement exists between two parties. Agreement consists of an offer by an indication of one person to another of the offeror's willingness to enter into a contract on certain terms without...
, consideration
Consideration
Consideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise. It can take a number of forms: money, property, a promise, the doing of an act, or even refraining from...
and an intention to create legal relations.
Facts
The Carbolic Smoke Ball Company made a product called the "smoke ball". It claimed to be a cure for influenzaInfluenza
Influenza, commonly referred to as the flu, is an infectious disease caused by RNA viruses of the family Orthomyxoviridae , that affects birds and mammals...
and a number of other diseases, in the context of the 1889-1890 flu pandemic (estimated to have killed 1 million people). The smoke ball was a rubber ball with a tube attached. It was filled with carbolic acid
Phenol
Phenol, also known as carbolic acid, phenic acid, is an organic compound with the chemical formula C6H5OH. It is a white crystalline solid. The molecule consists of a phenyl , bonded to a hydroxyl group. It is produced on a large scale as a precursor to many materials and useful compounds...
(or phenol). The tube would be inserted into a user's nose and squeezed at the bottom to release the vapours. The nose would run, ostensibly flushing out viral infections.
The Company published advertisements in the Pall Mall Gazette
Pall Mall Gazette
The Pall Mall Gazette was an evening newspaper founded in London on 7 February 1865 by George Murray Smith; its first editor was Frederick Greenwood...
and other newspapers on November 13, 1891, claiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions set out in the advertisement.
Mrs Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used it three times daily for nearly two months until she contracted the flu on 17 January 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, a solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
. On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims" they would need her to come to their office to use the ball each day and be checked by the secretary. Mrs Carlill brought a claim to court. The barristers representing her argued that the advertisement and her reliance on it was a contract between her and the company, and so they ought to pay. The company argued it was not a serious contract.
Judgment
The Carbolic Smoke Ball Company, despite being represented by HH Asquith, lost its argument at the Queen's Bench. It appealed straight away. The Court of Appeal unanimously rejected the company's arguments and held that there was a fully binding contract for £100 with Mrs Carlill. Among the reasons given by the three judges were (1) that the advert was a unilateral offer to all the world (2) that satisfying conditions for using the smoke ball constituted acceptance of the offer (3) that purchasing or merely using the smoke ball constituted good consideration, because it was a distinct detriment incurred at the behest of the company and, furthermore, more people buying smoke balls by relying on the advert was a clear benefit to Carbolic (4) that the company's claim that £1000 was deposited at the Alliance Bank showed the serious intention to be legally bound. The judgments of the court were as follows.Lord Justice Lindley
Lindley LJNathaniel Lindley, Baron Lindley
Sir Nathaniel Lindley, Baron Lindley SL PC FRS was an English judge.-Biography:He was the second son of the botanist John Lindley, born at Acton Green, London. He was educated at University College School, and studied for a time at University College, London...
gave the first judgment, after running through the facts again. He makes short shrift of the insurance and wagering contract arguments that were dealt with in the Queen's Bench.
Already, it is apparent which way that Lindley LJ will decide. Judges often differ in their style, and in 19th century cases it was more usual to be short and direct, giving the decision first and then the reasons. Since the later 20th century, judges have made their opinions ever longer and wordier, often dealing with all sides and points of argument before reaching conclusions. He follows on with essentially five points. First, the advert was not "mere puff
Puffery
Puffery as a legal term refers to promotional statements and claims that express subjective rather than objective views, which no "reasonable person" would take literally...
" as had been alleged by the company, because the deposit of £1000 in the bank evidenced seriousness. Second, the advertisement was an offer to the world. Third, communication of acceptance is not necessary for a contract when people's conduct manifests an intention to contract. Fourth, that the vagueness of the advert's terms was no insurmountable obstacle. And fifth, the nature of Mrs Carlill's consideration (what she gave in return for the offer) was good, because there is both an advantage in additional sales in reaction to the advertisement and a "distinct inconvenience" that people go to use a smoke ball.
Lord Justice Bowen
Bowen LJ's opinion was more tightly structured in style and is frequently cited. Five main steps in his reasoning can be identified. First, he says that the contract was not too vague to be enforced, because it could be interpreted according to what ordinary people would understand by it. He differed slightly to Lindley LJ on what time period one could contract flu and still have a claim (Lindley LJ said a "reasonable time" after use, while Bowen LJ said "while the smoke ball is used") but this was not a crucial point, because the fact was the Mrs Carlill got flu while using the smoke ball. Second, like Lindley LJ, Bowen LJ says that the advert was not mere puff because £1000 was deposited in the bank to pay rewards. Third, he said that although there was an offer to the whole world, there was not a contract with the whole world. Therefore, it was not an absurd basis for a contract, because only the people that used it would bind the company. Fourth, he says that communication is not necessary to accept the terms of an offer; conduct is and should be sufficient. Fifth, there was clearly good consideration given by Mrs Carlill because she went to the "inconvenience" of using it, and the company got the benefit of extra sales.Lord Justice AL Smith
AL Smith LJ's judgment was more general and concurred with both Lindley LJ and Bowen LJ's decisions.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
European Communities Act 1972
European Communities Act 1972 can refer to:*European Communities Act 1972 * 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
Puffery
Puffery as a legal term refers to promotional statements and claims that express subjective rather than objective views, which no "reasonable person" would take literally...
", 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
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
wide consumer protection regime (Directive 2001/95/EC) again provide criminal penalties for unsafe products.
Thirdly, the Consumer Protection Act 1987
Consumer Protection Act 1987
The Consumer Protection Act 1987 is an Act of the Parliament of the United Kingdom that made important changes to the consumer law of the United Kingdom. Part 1 implemented European Community Directive 85/374/EEC, the product liability directive, by introducing a regime of strict liability for...
(which is also part of EU wide regulation under Directive 85/374/EEC) creates a statutory tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
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
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...
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
Enterprise Act 2002
The Enterprise Act 2002 is an Act of the Parliament of the United Kingdom which made major changes to UK competition law with respect to mergers and also changed the law governing insolvency bankruptcy.-Structure:*Part 1 The Office of Fair Trading...
, 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
Hugh Collins
Hugh Collins F.B.A. is the Professor of English Law and Head of the Law Department at the London School of Economics. He is also the general editor for the Modern Law Review, the most widely read British academic law journal...
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 [contract law] 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
A. W. B. Simpson
Alfred William Brian Simpson QC , FBA usually referred to as A. W. B. Simpson, was a British legal historian and the emeritus Charles F. and Edith J. Clyne Professor of Law at the University of Michigan Law School.- References :...
, 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
Influenza pandemic
An influenza pandemic is an epidemic of an influenza virus that spreads on a worldwide scale and infects a large proportion of the human population. In contrast to the regular seasonal epidemics of influenza, these pandemics occur irregularly, with the 1918 Spanish flu the most serious pandemic in...
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
Bishop of London
The Bishop of London is the ordinary of the Church of England Diocese of London in the Province of Canterbury.The diocese covers 458 km² of 17 boroughs of Greater London north of the River Thames and a small part of the County of Surrey...
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 CarwardineWilliams v CarwardineWilliams v Carwardine [1833] is an English contract law case which concerns how a contract comes about through the offer of a reward. It also raises interesting questions about the necessity of reliance on an offer in the formation of a contract.-Facts:...
, 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 compensationDamagesIn law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
. 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
Leonard v. Pepsico, Inc.
Leonard v. Pepsico, Inc., 88 F. Supp. 2d 116, , aff'd 210 F.3d 88 , more widely known as the Pepsi Points Case, is a contracts case tried in the United States District Court for the Southern District of New York in 1999, in which the plaintiff, John Leonard, sued PepsiCo, Inc...
, Judge Kimba Wood
Kimba Wood
Kimba Maureen Wood is a United States federal judge for the United States District Court for the Southern District of New York.-Early life and education:...
wrote,
"Long a staple of law schoolLaw schoolA law school is an institution specializing in legal education.- Law degrees :- Canada :...
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
Kimba Wood
Kimba Maureen Wood is a United States federal judge for the United States District Court for the Southern District of New York.-Early life and education:...
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.
Aftermath
After the action, Mr Roe formed a new company with limited liability, and started up advertising again. Many people conclude after reading the case that the Carbolic Smoke Ball Company would have been brought down by thousands of claims. The company did not have limited liabilityLimited liability
Limited liability is a concept where by a person's financial liability is limited to a fixed sum, most commonly the value of a person's investment in a company or partnership with limited liability. If a company with limited liability is sued, then the plaintiffs are suing the company, not its...
, which could have meant personal ruin for Mr Roe. In his submissions to the Court of Appeal, Finlay QC had used that as an argument against liability. He said that 10,000 people might now be sniffing at smoke balls hoping for their £100, and it would be a travesty to inflict insolvency on this one unfortunate company. But this did not happen at all. In a new advert on February 25, 1893 in the Illustrated London News
Illustrated London News
The Illustrated London News was the world's first illustrated weekly newspaper; the first issue appeared on Saturday 14 May 1842. It was published weekly until 1971 and then increasingly less frequently until publication ceased in 2003.-History:...
, Mr Roe cunningly turned the whole lost case to his advantage. He described the culpable advert, and then said,
"Many thousand Carbolic Smoke Balls were sold on these advertisements, but only three people claimed the reward of £100, thus proving conclusively that this invaluable remedy will prevent and cure the above mentioned diseases. The CARBOLIC SMOKE BALL COMPANY LTD. now offer £200 REWARD to the person who purchases a Carbolic Smoke Ball and afterwards contracts any of the following diseases..."
In the advertisement's small print were some restrictive conditions, with a period of 3 months to use the ball and claim, showing that legal advice had been adhered to. Mr Roe left the management of the new company to other new subscribers and directors, who did not pursue such an aggressive advertising policy. By 1895 the company had fallen on harder times, and it had to be wound up in 1896. Simpson suggests that the new management "had failed to grasp the fact that vigorous advertising was essential to success in the field of quack medicine." Mr Roe himself died at the age of 57 on June 3, 1899 of tuberculosis
Tuberculosis
Tuberculosis, MTB, or TB is a common, and in many cases lethal, infectious disease caused by various strains of mycobacteria, usually Mycobacterium tuberculosis. Tuberculosis usually attacks the lungs but can also affect other parts of the body...
and valvular heart disease.
Mrs Louisa Carlill, however, lived until she was 96. She died on March 10, 1942, according to her doctor, Mr Joseph M. Yarman, principally of old age. But there was one other cause noted: influenza.
See also
- English contract lawEnglish contract lawEnglish contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...
- Invitation to treatInvitation to treatInvitation to treat is a contract law term. It comes from the Latin phrase invitatio ad offerendum and means "inviting an offer". Or as Andrew Burrows writes, an invitation to treat is...
- Shuey v United States, 92 US 73 (1875)