HIDAYATULLAH NATIONAL LAW UNIVERSITY,

UPARWARA, NAVA RAIPUR- 492002

A CASE STUDY OF CARLILL VS CARBOLIC SMOKE

BALL CO.

SUBMITTED BY: SUBMITTED TO:

PARTH TAMASKAR MR SAURABH BARA

SECTION B FACULTY OF CONTRACTS

SEMESTER – 1 , B.A.LL.B. (Hons) DEPT. OF CONTRACTS

DATE OF SUBMISSION: 10/ 11/ 2021

NATIONAL LAW UNIVERSITY, RAIPUR

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 ABSTRACT
The project discusses the details of the case as an analysis. Important concepts have been covered to
understand their relevance in the case. A description of the facts and arguments given by both sides
provides further insight. Finally, other similar case laws have also been given for comparison. The
judgment too is described here.

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 INDEX

CONTENTS PAGE NUMBER

1. INTRODUCTION 4-6
(INCLUDING RESEARCH
QUESTIONS, OBJECTIVES,
METHOD AND REVIEW OF
LITERATURE)
2. CHAPTER 1
7-8
(IMPORTANT CONCEPTS)
3. CHAPTER 2 9
(FACTS)
4. CHAPTER 3 10
(ARGUMENTS)

5. CHAPTER 4 11-12
(JUDGEMENTS)

6. SIMILAR CASE LAWS

7. CONCLUSION
13

14

8. REFERENCES 15

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 INTRODUCTION

Carlill vs Carbolic Smoke Ball co is a landmark case in contract law. It was an example of a
case of unilateral offer where an entity laid down conditions followed by the plaintiff. Still,
subsequently, the entity didn’t fulfill its part of the contract, and the matter was taken to
court. It is often the first case a law student may learn. The case laid down a few precedents
that were extremely important and continue to be even today in common law nations.

The plaintiff had sued a firm for their smoke ball having failed to work as specified in an
advertisement. However, the defendant had argued that the advertisement was only to attract
people to its products and was never meant to be considered seriously in the first place. In the
end, the matter was decided in favour of the plaintiff. The case involves many important
concepts, all of which shall be described in the initial parts of the project, along with a
detailed analysis of the case and related case laws.

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 Research Questions

1. What are the important concepts involved in the case?

2. What are the facts of the case?
3. What were the arguments raised?
4. What was finally adjudged?
5. What are the relevant case laws?

Objectives

1. To understand concepts relevant to the case.

2. To understand the details of the case.
3. To understand on what grounds the case was decided in favour of one
party.

Method

The study outline necessitates in itself the interpretive study of Carlill vs

Carbolic Smoke Ball co prepared in both analytical and descriptive methods.
The discussion has been reported using comprehensive research and analysis
utilising articles, research papers, e-journals, and books on the referring topic.
Due credit has been given to the same throughout the project. Various statistics
have also been used, and the sources for the same have been cited. As instructed

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by the Faculty of Contracts, the project's structure has been adhered to, and the
same has eased give the project a fine close off.

Review of Literature

 “Contract and Specific relief” by Avtar Singh: The book helped in

understanding the important concepts of Carlill vs Carbolic Smoke Ball Co
and gave an overall picture of the case from the point of view of Indian
Contract law.
 “Anson’s Law of Contracts” by Beatson, Burrows and Cartwright: The book
helped in understanding the important concepts of Carlill vs Carbolic Smoke
Ball Co and gave an overall picture of the case from the point of view of
English Contract law.
 “Carlill v. Carbolic Smoke Ball Company: Influenza, Quackery, and the
Unilateral Contract” by McGinnis,
https://www.utpjournals.press/doi/abs/10.3138/cbmh.5.2.121 : The website
helped to understand a summary of the concerned case and present it in a
concise manner.
 “Quackery and Contract Law: The Case of the Carbolic Smoke Ball” by Simpson,
https://www.jstor.org/stable/724433: This provided an analysis of the case from a
different viewpoint. It was insightful for a first timer.

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 IMPORTANT CONCEPTS

Offer: The word ‘offer’ is typical to English Contract law, while the Indian Contract
Act,1872 uses the word ‘proposal’ for the same. Offer is defined as follows: “An offer is an
intimation, by words or conduct, of a willingness to enter into a legally binding contract, and
which in its terms expressly or impliedly indicates that it is to become binding on the offeror
as soon as it has been accepted by an act, forbearance, or return promise on the part of the
person to whom it is addressed1”. While a proposal is defined as follows: “ When one person
signifies to another his willingness to do or abstain from doing anything, with a view to
obtaining the assent of that other to such act or abstinence, he is said to make a proposal2”. It
means that one person may indicate his willingness to do or not do something, to obtain the
willingness of another person to do or not do something in view of the same. For example, A
offers to sell his bike to B for Rs 20000. Here A is making the offer to obtain B’s willingness
and the stated sum for the same.
Invitation to Offer: An invitation to offer is different from an actual offer. Here, a party does
not express their final willingness to enter into a contract like in an offer but merely invites
the other to make an offer on his terms. For example, an item on display at a shop for Rs 20
indicates that the shopkeeper has invited the customer to make an offer to the shopkeeper to
purchase the item for Rs 20 on the terms of the shopkeeper. It does not mean that the
customer is bound to accept the said terms to purchase the product upon seeing the terms.
That is why the customer may also choose to bargain with the shopkeeper to reduce the
product's price.
Acceptance: Anson’s defines acceptance as follows: “Acceptance of an offer is the
expression, by words or conduct, of assent to the terms of the offer in the manner prescribed

1
Vol 29, BEATSON, BURROWS AND CARTWRIGHT, ANSON’S LAW OF CONTRACTS,33, (Oxford
University Press,2010)
2
Indian Contract Act, 1872, § 2(a), No 9, Acts of Parliament,1872(Ind.)

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or indicated by the offeror3”. While the ICA defines it as follows: “When the person to whom
the proposal is made signifies his assent thereto, the proposal is said to be accepted. A
proposal when 

accepted becomes a promise4”. Here, if A proposes that B buy his bike for Rs 20000 and B
agrees to the same, B’s action would constitute an acceptance. 
There are various ways by which communication of acceptance can be undertaken, including
via external manifestation or an overt act or acceptance by conduct.
Consideration: For English law, one can refer to the definition of consideration given by
Lush J in Currie v Misa: “A valuable consideration, in the sense of the law, may consist in
some right, interest, profit, or benefit accruing to the one party, or some forbearance,
detriment, loss, or responsibility given, suffered, or undertaken by the other5.” In Indian law,
it is defined as follows: “When at the desire of the promisor, the promise or any other person
has done or abstained from doing or does or abstain from doing, or promises to do or abstain
from doing, something, such act or abstinence or promise6 is called a consideration for the
promise”. Hence for example, if A promises B to give A’s bike to him and in return, B would
pay him Rs 20000, consideration for A is Rs 20000 while for B, it is the bike.
General Offer: In Anson’s, this is defined as follows: “An offer need not be made to an
ascertained person, but no contract can arise until it has been accepted by an ascertained
person7”. Therefore, it could be interpreted that an offer made to the public at large is a
general offer. It is only enforceable when accepted by someone and is performed as per the
terms and conditions of the offer. For example, a man promises to pay Rs 5000 to anyone
who can find his lost dog.
Unilateral Contract: A unilateral contract is a type of contract where the consideration is
fulfilled by one party after the other party has fulfilled their part of the contract. It follows
therefore that to enforce such a contract, the offeree must do an act in response to the offer of
the offeror.

  
3
Vol 29, BEATSON, BURROWS AND CARTWRIGHT, ANSON’S LAW OF CONTRACTS,40, (Oxford
University Press,2010)
4
Indian Contract Act, 1872, § 2(b), No 9, Acts of Parliament,1872(Ind.)
5
Currie vs Misa, (1875) LR 10 Ex 153
6
Indian Contract Act, 1872, § 2(d), No 9, Acts of Parliament,1872(Ind.)
7
Vol 29, BEATSON, BURROWS AND CARTWRIGHT, ANSON’S LAW OF CONTRACTS,37, (Oxford
University Press,2010)

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 FACTS

The defendants, The Carbolic Smoke Ball Co., invented a product called “smoke ball”,
which, according to them, would cure the user of influenza if used three times daily for two
weeks. The product was launched at a period when there was a flu epidemic in England.
According to the product’s mechanism, the tube of the ball would be inserted in the nose, and
the ball would be squeezed from the bottom to release vapours which would subsequently
cure the patient.

To demonstrate that they were serious about the efficacy of their product, they released an
advertisement in the newspaper in 1891 claiming that they would pay 100 pounds to anyone
who fell sick even after using their product according to the instructions supplied along with
it. The advertisement also claimed that 1000 pounds were deposited in the Alliance Bank at
Regent Street to demonstrate their sincerity in the matter.

The plaintiff, Louisa Elizabeth Carlill, bought the product and used it per the instructions
supplied. She used it for two months until January 1892, when she caught influenza despite
having used it as per the instructions. She, therefore, claimed her share of 100 pounds as
promised in the advertisement. The company ignored her first two letters. In reply to a third
letter, they claimed that to verify her claim, she would have to come to their office and use
the ball again as required. Subsequently, she brought a suit against the defendants for failing
to fulfill their part of the promise.

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 ARGUMENTS

The defendant argued that the plaintiff’s claim did not lie because of three reasons. Firstly,
the offer did not have a binding impact to form a contract. The words used in the
advertisement were too vague to be appropriately interpreted; hence they could not have been
capable of forming a contract. Secondly, there was no specified time limit for the duration for
which the ball was to be used. Also, there was no possible way of detecting whether a
customer would have used the ball as prescribed. There was a possibility that customers
could have brought a mischievous claim without even having used the product as directed in
the instructions. Lastly, the contract did not lie as the plaintiff had failed to communicate the
fact that they had used the product to the defendant. Therefore, the defendant argued that the
advertisement was just a mere bet and that there was no serious intention on the part of the
firm to fulfill the terms contained within the ad.

The plaintiff, on the other hand, argued that a unilateral contract would lie. Firstly, there was
adequate consideration as the plaintiff had paid the required sum to purchase the ball and
used it as per the instructions. There was sufficient intention to contract on the part of the
defendant. Firstly, they had promised that 100 pounds would be paid to the person who
would contract flu even after using the ball as specified. To demonstrate their seriousness,
they had also gone ahead and deposited 1000 pounds in a bank and had mentioned it in the
advertisement. There were no vague terms in the contract, and everything was clear. The
plaintiff, having followed the instructions, would be entitled to the sum mentioned in the
advertisement.

Therefore, when laying down the facts of the case, roughly four questions needed to be
answered to decide the case in favour of one party. First, whether there was a binding
contract or not. Second, whether there existed a requirement for a formal notification of
acceptance. Third, whether the plaintiff was required to communicate her acceptance of the
offer to the plaintiff. Fourth, whether the plaintiff had proved that her consideration was
adequate to warrant a claim against the defendant.

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 JUDGEMENT

There was a Coram of three judges present in the Court of Appeal, Lord Justice Lindley, Lord
Justice Bowen and Lord Justice AL Smith. Justice Hawkins in the lower court had already
dismissed the defendant’s claims that the advertisement was like a bet and held that the
plaintiff was entitled to the amount due to her. The opinion of all the judges seemed to
reinforce this fact.

Lindley LJ began by agreeing with Hawkins J that this agreement wasn’t a bet. He said that
the promise was a legitimate one, and it was proved by the fact that the defendant had
deposited a sum in the bank to prove that they were serious. Secondly, he opined that the
advertisement was a general offer. Anybody who fulfilled its terms and conditions was
entitled to the consideration offered, as was the precedent laid down in earlier cases. He
opined that there was no communication of acceptance required in this case as the
performance of its terms and conditions was enough to indicate acceptance.

He also deliberated on the language of the advertisement to determine whether action would
lie by the plaintiff against the defendant. He ultimately came to the conclusion that the terms
of the ad meant that the plaintiff had a legitimate cause to pursue the case. He also deliberated
on whether there was any consideration involved in the case. He came to the conclusion that
since the defendant stood to gain via the sale of the product via such advertisement, and the
fact that patients would go to great lengths to follow the instructions of the product, this
constituted ample consideration for the promise and that the plaintiff was correct in bringing
such a suit against the plaintiff.

Bowen LJ opined that the advertisement wasn’t a contract by itself, but an offer made to the
public at large. He deliberated on the terms of the advertisement. He came to the conclusion
that the words of the advertisement meant that anyone who had used the ball as per the
instructions supplied along with it after the publication of the advertisement and subsequently
contracted the disease would be entitled to compensation by the defendant. He further says

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that the ad was not a “mere puff” as the company had displayed its seriousness by depositing
1000 pounds in a bank. He said that the argument that the plaintiff's claims could not be
verified did not stand as if a person chose to enter into such a contract, he would have to
fulfill his side of the bargain.

Bowen LJ agreed with Lindley’s view and affirmed that the performance would suffice in
such cases, and no communication would be deemed necessary as a person by making such
offers implies that he needs no acceptance. He agreed that consideration was involved as the
plaintiff had used the ball according to the supplied instructions and that the defendant would
stand to gain from the sale.

Smith LJ agreed with the views of both. He too agreed that the advertisement was a general
offer and was intended to be acted upon. As for the time limit, the incident took place well
within it and hence action would lie against the defendant, whatever interpretation be applied
as to the time limit intended. He agreed that no communication of acceptance was necessary
as there was no such clause related to it within the contract and that performance would
suffice by itself. He added that a person who had performed his part of the contract was
capable of suing for non-performance of the other party. He concluded by saying that there
was ample consideration as the plaintiff used the ball according to the instructions and that
the defendants stood to gain from its sale, as opined by the other two judges.

Therefore, the bench decided unanimously in favour of the plaintiff and the defendant’s
appeal was hereby dismissed.

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 SIMILAR CASE LAWS

Har Bhajan Lal vs Har Charan Lal: In this case, the defendant had promised a reward of
Rs 500 to anyone who found his missing son. The plaintiff had earlier found his son at a
railway station and communicated the same to the defendant. However, the defendant had
refused to pay the reward to him. It was held that the promise of a reward was an offer
addressed to the public at large and was capable of acceptance by any person who could
fulfill the conditions of the offer. Hence the plaintiff was entitled to his reward.
ML Venhayyamma vs VNA Rao: This case is an example of an offer accepted by acting
upon its terms. The defendant(aunt) with whom the plaintiff had lived earlier promised that if
the plaintiff were to live with her newlywed husband, she would purchase a property in their
name. Accordingly, the plaintiff and her husband moved in with the aunt. However, the aunt
purchased the property in her name. Dissatisfied with this, the plaintiff and her husband
ceased to reside with the aunt. Subsequently, the aunt wrote a letter to them saying that the
property had been purchased for them and would be transferred to her upon the aunt’s death.
The plaintiff and her husband accordingly resided with the aunt until her death. This act was
held to be a sufficient acceptance of the aunt’s promise in her letter.
Abdul Aziz vs Masum Ali: This is a case of consideration in a unilateral promise. The
defendant promised Rs 500 to a fund for repairing a mosque, but nothing had been done to
start the repair work for the mosque. Subsequently, even though the plaintiff sued the
defendant for the promised amount, the defendant was held to be not liable. It was held that
liability arose only when the promisee had, by doing some act, on the faith of the promise,
altered his position. This relates to the case in discussion as in that case, there was ample
consideration on both sides as discussed earlier and hence, the promise was held to be
enforceable.
Kedarnath Bhattacharjee vs Gorie Mohammed: In this case, the question of revocation of
a promise after commencement of performance was deliberated. The defendant had promised
to pay the plaintiff a sum for the construction of a hall, but soon after the beginning of the
construction, the defendant refused to pay. The court held that the defendant was to be held
liable as soon as the contract for the construction was entered into. This relates to the smoke

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ball case as by applying the same principles, the defendant would be held liable as soon as the
plaintiff used the ball according to the instructions and subsequently fell ill.

CONCLUSION

The case of Carlill vs Carbolic Smoke Ball Co is a landmark case as it laid down a few basic
concepts which continue to be referred to even today. The judgement in the case managed to
define a general offer, consideration within the offer, acceptance via conduct and many more
essential concepts. The concepts within the decision have been referred to in countless other
cases and are pivotal to determining liability under the contract law. From the facts, it is clear
that advertisements can be interpreted as general offers and not mere bets. Also, the
performance of the contract conditions and display of adequate consideration may make both
parties liable. This fact is further strengthened by the examples of other case laws discussed
within the project.

An interesting fact to know is that the defendant’s counsel would go on to become a very
influential figure in England’s politics. He was none other than HH Asquith, who later
became Prime Minister of the United Kingdom. Therefore, the case has its importance in
other avenues as well!

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 REFERENCES

 Vol 29, BEATSON, BURROWS AND CARTWRIGHT, ANSON’S LAW OF

CONTRACTS,33, (Oxford University Press,2010)
 Currie vs Misa, (1875) LR 10 Ex 153
 Carlil v Carbolic Smoke Ball Company (1893) 1 QB 256.
 AWB Simpson, Quackery and Contract Law: The Case of the Carbolic Smoke Ball,
JSTOR, (Jun 1985), https://www.jstor.org/stable/724433
 IPLEADERS, https://blog.ipleaders.in/, (last visited Nov 10,2021)

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