Question

CARLILL V CARBOLIC SMOKE BALL CO [1893]

IN THE 1890S, ENGLAND WAS PLAGUED BY TWO RELATED PHENOMENA: AN INFLUENZA EPIDEMIC AND QUACK MEDICINE. THE CARBOLIC SMOKE BALL CO WAS ONE OF MANY COMPANIES THAT TRIED TO CAPITALIZE ON THE COUNTRY’S ILL HEALTH. IT PRODUCED A HAND-HELD GADGET THAT, WHEN SQUEEZED, EMITTED A SMALL CLOUD OF CARBOLIC ACID DUST. THE COMPANY CLAIMED THAT IF ONE INHALED THE DUST REGULARLY, IT WOULD PREVENT A LONG LIST OF AILMENTS RANGING FROM DIPHTHERIA AND BRONCHITIS TO SNORING AND SORE EYES. AS PART OF ITS MARKETING PLOY, THE COMPANY PUBLISHED AN ADVERTISEMENT THAT OFFERED TO PAY £100 TO ANY PERSON WHO CONTRACTED INFLUENZA WHILE USING THE CARBOLIC SMOKE BALL. MRS CARLILL SAW THE AD, BOUGHT THE PRODUCT, AND USED IT AS DIRECTED. WHEN SHE LATER CAME DOWN WITH THE FLU, SHE CLAIMED TO BE ENTITLED TO £100. THE COMPANY REFUSED TO PAY. IT SAID THAT THERE WAS NO CONTRACT BECAUSE SHE HAD NOT TOLD THEM THAT SHE HAD ACCEPTED THEIR OFFER AND WAS USING THEIR PRODUCT.

think critically about what you know of the nature of offer and acceptance. Has Mack committed a crime? What argument should Mack's lawyer make to absolve him?

Answer 1

Q: Think critically about what you know of the nature of offer and acceptance. Has Mack committed a crime? What argument should Mack's lawyer make to absolve him?

A: The nature of the offer was that of an unilaterally binding one which meant that anyone could based on the advertisement perform the terms and conditions and claim the reward. The person performing the terms and conditions did not need to intimate the company prior to their performance or acceptance of the company's public advertisement. It was open to the general public. So the offer was the advertisement and the user who used the smoke ball (hand-held gadget) implied the acceptance of the offer. The consideration was that the reward constituted in the event of the failure of the hand-held gadget.

Yes, Mack has committed a breach of contract in the case of Mrs. Carlill, Mack had further promoted quackery by making false claims about cures for a variety of diseases and disorders which is illegal and owed her GBP 100.

One possible argument that can be employed by Mack's lawyer is that he relied on and promoted quackery. Quackery is fraudulent and illegal. Thus, any contract or agreement based on an illegal subject, context or intention will also be an uneforceable and null and void contract and cannot be binding so Mack does not owe any money as claimed by Mrs. Carlill.