CONTRACT LAW

LEGAL ENGLISH
6,7 NOVEMBER 2021
Module description

This module aims to teach learners to understand and use legal

English in the area of contract law. The main theme is reading
the judgement of the English court case Carlill v. Carbolic Smoke
Ball Co. [1893] 1 Q. B. 256. Learners are required to read for
general and detailed understanding, brief the text in their own
words, compare their own jurisdiction and English law in the
given area, apply the language to argue in a moot.
Themes and materials

• Reading the judgment of an English court case: Carlill v

Carbolic Smoke Ball Co. [1893] 1 Q. B. 256
• The facts of the case, the defence: Presentation of the facts and
arguments for the defence
• The decision: Analysis of the facts and decisions from Bowen L.J’s
judgment
What you learn: Skills

• Reading
• Understanding the organisation of the text
• Reading for general understanding
• Reading to find specific information
• Reading for detailed understanding

• Refo rmul atio n

• Summerising
• Comparing
• Applying
What you learn: Vocabulary and
structure

• Predicting vocabulary before reading

• Finding and using specifi c clues in the text that indicate the
meaning of unknown words

• Understanding very complex sentences

• Analysing a sentence phrase by phrase

Before you
read
Warming up: Group working

• Write a list of 10 words or phrases that you think might fi nd in

a judgement

• Try to list word families: for ex. contract - contractual

• Compare the list with other groups

Understand the title of the case

Carlill v Carbolic Smoke Ball Co. [1893] 1 Q. B. 256

• What do the abbreviations mean?

• What information does the title of the case give you

without looking at the case
First
reading
First reading: Understand the contents
and organisation of the text

• The fi rst par t of the case contains fi ve main elements:

• Legal principles decided in the case
• The facts of the case
• Decision in the case of first instance
• First judge’s decision in the appeal
• Second judge’s decision and judgment in the appeal: argument for the defendant

•Skim the text and divide it clearly into fi ve sections

• Scan the text to fi nd four other abbreviations: what do they

means?
Reading for
detail and
language study
The facts of the case
Scan the text to fi nd the following
facts:

• Who was the plaintiff in the case of fi rst instance?

• Who were the defendants?

• Who won the case of fi rst instance?

• Who appealed against the decision?

Vocabulary: Using context clues

Example:

100l. REWARD will be paid ... to any person who contracts

infl uenza

REWARD = money you off er to someone who does a certain thing

REWARD = money off ered for a certain action

Work out the probable meaning of the word in
CAPITALS by using the context clue

• The increase epidemic infl uenza, cold or any DISEASE caused

by taking cold...

• 1000l. is DEPOSITED with the Alliance Bank

• Many thousand smoke balls were sold as PREVENTIVES against

this disease and in no case was the disease contracted...

• Hawkins J. held that she [the plaintiff ] was entitled to

RECOVER the 100l. The defendant appealed.
 Why did they deposit 1000l. with the bank?

Reading for details

a) W h a t d i d t h e C a r b o l i c S m o k e B a l l C o . s e l l ?

b) W h a t w e r e t h e y f o r ?

c) A c c o r d i n g t o t h e c o m p a n y, d i d t h e y w o r k ?

d) We r e t h e y e x p e n s i v e ?

e) W h o d i d t h e C o m p a n y o ff e r t o p a y ?

f) W h y d i d t h e y d e p o s i t 1 0 0 0 l . w i t h t h e b a n k ?

g) W h y d i d t h e p l a i n t i ff b u y t h e product?

h) D i d s h e f o l l o w t h e i n s t r u c t i o n s ?

i) D i d i t w o r k i n h e r c a s e ?

j) W h y d o y o u s u p p o s e t h e c o m p a n y m a d e t h i s o ff e r ?

k) I n y o u r o p i n i o n , d o e s i t l o o k l i k e a s e r i o u s o ff e r ? G i v e r e a s o n s f o r y o u r a n s w e r.
ORAL PRACTICE: Group working

• Use your answers to the exercise 3 and 4 (reading for details)

to describe the facts of the case briefl y

• Start like this: “the defendants, The Carbolic Smoke Ball

Company, sold a product called carbolic smoke balls, which
they advertised as a very good preventive against infl uenza...”
Reading for
detail and
language study
The def ence
Was the advertisement a contract?
Understanding complex sentences

• Read twice

• Other technique:
• Divide the sentence into short phrases
• Study each phrase: What information does it give? What is its relation to the rest of the
sentence?
• Think about the general meaning of the sentence: What are the main points? What other
information is important?
Example:

It was urged also, that if you look at this document you will fi nd
much vagueness as to the persons with whom the contract was
intended to be made - that, in the fi rst place, its terms are wide
enough to include persons who may have used the smoke ball
before the advertisement was issued; at all events, that it is an
off er to the world in general, and, also that it is unreasonable to
suppose it to be a defi nite off er because nobody in their senses
would contract themselves out of the opportunity of checking the
experiment which was going to be made at their own expense.
Breakout

I t wa s u r g e d a ls o, th a t if you lo ok a t this do c u m en t

( 1 ) yo u w ill fi n d m u c h va g u en e s s a s to th e p e r s o n s w i t h w h o m t h e c o nt ra c t
wa s inte n d ed to b e m a de –

( 2 ) th a t, in the fi r s t p la c e , its ter m s a r e w i d e en o ug h t o i nc l ud e p er s o n s w h o

m ay h ave u s e d th e s m oke b a ll b ef o r e th e a dv e r t i s e m en t wa s i s s u ed ;

( 3 ) a t a ll e v e nt s , th a t it is a n off e r to th e w o r l d i n g en e ra l ,

( 4 ) a n d, a ls o tha t it is u n r e a s on a b le to s u p po s e i t t o b e a d efi n i t e o ff e r
b e c a u s e n ob od y in t he ir s e n s e s w ou ld c o nt ra c t t he m s e l v es o u t o f t h e
o pp or t un ity of c he c k in g th e e x pe r im e n t w h i c h wa s g o i n g t o b e m a d e a t t h ei r
o w n e x p e ns e .
Function

Function
It was urged also, that if you look at Reporting
this document
(1) you will find much vagueness Asserting
as to the persons with whom the Specifying
contract was intended to be made
(2) that, in the first place, its terms Asserting
are wide enough
to include persons who may have Specifying
used the smoke ball before the
advertisement was issued;
Function

Function
(3) at all events, that it is an offer to Asserting
the world in general
(4) and, also that it is unreasonable Asserting
to suppose it to be a definite offer
as to the persons with whom the Specifying
contract was intended to be made
because nobody in their senses Explaining
would contract themselves out of the
opportunity
of checking the experiment which Specifying
was going to be made at their own
Understanding
Main assertion
The defendants contend that:
1. The document is very vague
2. The terms are very wide
3. it is an offer to the rest of the
world/the world at large/the public
4. it is not a definite offer
Other important information
regarding the persons involved
including people who used the ball
befere the launch of the
advertisement
Because the company cannot check
the experiment
Exercise: Analyse the sentence into phrases,
indicate functions and main assertions

The defendants contend next, that it is an off er the terms of

which are too vague to be treated as a defi nite off er, inasmuch
as there is no limit of time fi xed for the catching of the
infl uenza, and it cannot be supposed that the advertisers
seriously meant to promise to pay money to every person who
catches the infl uenza at any time af ter the inhaling of the smoke
ball. 
Understanding

Main assertion Other important information

The defendants contend next:

1. It is not a definite offer because no time limit for contracting flu

the terms are too vague
2. The advertisement is not to anyone who contracted influenza
undoubtedly a commitment/The after using the smoke ball.
company does not intend to pay the
rewards
Exercise: Complete Part A of the table, stating
the defendant’s argument in your own word

PART A PART B
Defendant’s arguement Bowen LJ’s ruling on the point of law
1. The document is very vague
2. The terms are very wide
3. it is an offer to the rest of the
world/the world at large/the
public
4. it is not a definite offer
5. The advertisement is not
undoubtedly a commitment/The
company does not intend to pay
the rewards
Oral pratice: Present the defendant’s argument

Introductory Legal
• Scan the section of the text
phrase argument
containing argument for the
The defendants that it is an offer
defence: fi nd the phrase
contend next the terms of
used by the judge to
which
introduce the legal
arguments presented by
the defence
Development
People in private law:
suffi xes -er and -or

Noun or verb Agent noun Meaning

offer offeror person who offer
advertise advertiser person, company, etc. who advertises
property proprietor person who owns property (also owner)

Suffixes –er and –or indicate the agent, or person who does the action
Suffixe -ee indicate in nouns like employee and offeree
Role play

Form th e group of t hree. Ea ch c hoos e one of the followin g roles: The

Ju dge, Couns el for th e defen dan t, coun sel for the plain tiff .

Appl yi n g th e con tra ct law of Vietna m or En gla nd to th e fact of Carlill

JUDG E: presen t the fa cts of the c as e

COUNSE L FO R THE PLAINTIFF: Present your c ase

COUNSE L FO R THE DE FENDANT: Present your cas e, us in g the argu ment

p repared before

JUDG E: com men t on cou sel’s su bm ission a nd give judgment in th is ca se

Understanding
the development
and organisation
of the text

Skill of prediction
 Predict how Bowen L J will continue. Do you think he
will construe the words of the advertisement now?

1 It seems to me that in order to arrive at a right

conclusion we must read this advertisement in its
plain meaning, as the public would understand it.
It was intended to be issued to the public and to
be read by the public. How would an ordinary
person reading this document construe it?
 Was your prediction right? If not, what
has the speaker done here?

5 It was i ntended un ques tiona bly to h ave som e eff ect, an d I th ink the
eff ect wh i ch it wa s in ten ded to have, was to make people u s the smoke
b al l , bec ause the sugges tions and allegat ions wh ich it contain s are
d irected i m mediat ely t o th e us e of th e sm oke ball a s distinc t from th e
p urch ase of it. It did not follow tha t the s moke ba ll wa s to be purc has ed
10
from th e defen dan ts direct ly, or even from a gents of theirs directly. Th e
i n tenti on was tha t the c ircula tion of th e sm oke ball sh ou ld be promoted,
a nd th at th e us e of it sh ould be inc reas ed. The adver tisemen t begins by
s ayi ng th at a reward will be paid by th e Carbolic Smoke Ba ll Compa ny to
a ny person w ho contrac ts the in crea sing epidemic a f ter using th e ba ll.
 Will he examine this point in detail (1)? Or (2)
continue to describe the rest of the advertisement?

15 It has been said that the words do not apply only to

persons who contract the epidemic after the publi ­c ation of
the advertisement, but include persons who had previously
contracted the infl uenza. I cannot so read the
advertisement. It is written in colloquial and popular
language, and I think that it is equivalent to this:
 Will he explain the meaning of the
words in the advertisement?

20 “1000l. will be paid to any person who shall contract the

increasing epidemic after having used the carbolic smoke ball
three times daily for two weeks." And it seems to me that the
way in which the public would read it would be this, that if
anybody, after the advertisement was pub ­l ished, used three times
daily for two weeks the carbolic smoke ball, and then caught cold,
25 he would be entitled to the reward. Then again it was said: "How
long is this protection to endure? Is it to go on forever, or for
what limit of time?"
 What will he do next?

I think that there are two constructions of this document, each

of which is good sense, and each of which seems to me to satisfy
the exigencies of the present action. It may mean that the
protection is warranted to last during the epidemic, and it was
30 during the epidemic that the plaintiff contracted the disease.
 How will the text continue?

I t h i nk , mo r e p r o b ab l y, i t me a ns t h a t t he s mo ke b a l l w i l l b e a p r o t ec t i o n w hi l e
i t i s i n u se . T h a t s ee ms t o m e t he wa y i n w hi c h a n o r d i n a r y p er s o n wo u l d
u n d e r st a n d a n a d v er t i s e me n t ab o u t m e d i c i n e, an d a b o u t a s p e c i fi c ag ai n s t
35 i n fl u en z a . I t c o ul d no t b e s u p p o s ed t ha t a f t e r y o u h a ve l ef t o ff us i n g i t y ou a r e
s t i l l to b e p r o t e c t e d f o r eve r, as i f t h er e wa s t o b e a s t a m p s et up o n y ou r
f o re h ea d t h at yo u w e r e n ev er t o c a t c h i n fl u e nz a b e c au s e yo u h a d o n c e . us e d
t he c a rb o l i c s mo ke b a l l . I t hi n k t h e i m m un i t y i s t o l a s t d u r i n g t he us e o f t h e

40 b a l l . T ha t i s t h e way i n w h i c h I s ho u l d na t ura l l y r ea d i t , an d i t s e e ms t o m e
t ha t t he s ub s eq u en t l an g u a g e o f t h e a d v er t i s e me nt s u p p o r t s t ha t
c o n s t r uc t i o n. [ . . . ]

Wa s i t i nt e n d e d t h at t h e 10 0l s h o ul d , i f t h e c o nd i t i o ns w er e f ul fi l l ed , b e p a i d ?
 What method will he use to answer the
question?

'The adver tisement says that l000l is lodged at the bank for the
45 purpose. Therefore, it cannot be said that the statement that l00l
would be paid was intended to be a mere puff . I think it was
intended to be understood by the public as an off er which was to
be acted upon.

But it was said there was no check on the par t of the persons
who issued the adver tisement, and that it would be an insensate
50 thing to promise l00l to a person who used the smoke ball unless
you could check or superintend his manner of using it.
 How will the text continue?

The answer to that argument seems to me to be that if a person

chooses to make extravagant promises of this kind he probably
does so because it pays him to make them, and, if he has made
55 them, the extravagance of the promises is no reason in law why he
should not be bound by them.

It was also said that the contract is made with all the world ­ that
is, with ever ybody; and that you cannot contract with ever ybody.
It is not a contract made with all the world. There is the fallacy of
the argument.
 Will he explain why it is not a contract
made with all the world?

It is an off er made to al l the worl d; and why sho uld not an off er be made
60 to all the wo rld whi ch i s to ri pen i nto a con tra ct with anybo dy who co mes
fo rwa rd and per fo rms the co ndi ti on ? It i s a n o ff er to become li able to
a nyone who, befo re i t i s retracted, per fo rms the co ndi tio n, an d, al tho ugh
the off er i s made to the wo rl d, the contract is made with that l i mited
por ti on o f the publ ic who come fo rward and per fo rm the condi tio n on the
fai th of the adver ti sement.
65
[ ...] Then as to the a ll eged want o f co nsideratio n. The defi ni ti on of
"co nsi derati o n" given i n Sel wyn's Ni si P ri us, 8 th ed. p. 47, whi ch i s ci ted
a nd adopted by Ti ndal , C. J., in the case of Laythoarp v. Br yant , i s th is:
 How will the text continue?

“Any act of the plaintiff from which the defendant derives a

benefi t or advantage, or any labour, detriment, or inconvenience
70 sustained by the plaintiff ; provided such act is performed or such
inconvenience suff ered by the plaintiff, with the consent, either
express or implied, of the defendant.”
 Will he apply these principles to the
present case?

C a n it b e s a id he r e th a t if the pe r s on w ho r e a ds th i s a d v er t i s e me n t a p p l i e s
t hr ic e da ily, f or s u c h tim e a s m ay s e e m to h i m t o l era b l e , t h e c a r b o l i c s m o ke
75 b a ll to h is n os tr ils f o r a w h ole f o r tnig h t, h e i s do i n g no t h i n g a t a l l – t h a t i t i s a
m er e a c t w h ic h is n ot to c ou n t t owa rd s c o n s i de ra t i o n t o s up p o r t a pr o m i s e
( f or the l aw do es n o t r e qu ir e u s to m e a s u r e th e a de q ua c y o f t h e c o n ­
s i de ra tion ) . I n c onve n ie n c e s u s ta in e d by o n e p a r t y a t t h e r e qu e s t o f t h e o t h er
80 is e no ug h to c r e a te a c on s id e ra tio n . I th in k , t he r e f o r e , t h a t i t i s c o n s i de ra t i o n
e n ou g h th a t th e p lai ntiff took th e tr ou ble o f u s i n g th e s m o ke ba l l . B u t I t h i n k
a ls o th a t th e d ef en d a n ts r e c e ive d a b e ne fi t f r o m t h i s u s e r, f o r t h e u s e o f t h e
s m oke ba ll wa s c on te m p la te d b y th e de f e n da n t s a s b ei n g i n di r ec tl y a be n e fi t
t o th e m , b e c a u s e th e u s e of th e s m oke b a l l s w o ul d p r o m o t e t h e i r s a l e . [ . . . ]
Use your answers above and the main theme
of the text to continue the description of
judgment develops:

Bowen L J begins by defi ning how the advertisement must be

read, and who it was intended for. He goes on to consider the
eff ect the advertisement was intended to have, and the explains
who the words of the advertisement apply to and how long...
True or False – General questions

a) In this section of the text Bowen LG answers the defendant’s

arguments.

b) He agrees with most of the defendant’s argument.

c) He construes the word of the advertisement in detail one

section at a time.

d) He does not give the words fo the advertisement any special

legal meaning.
True or False – detailed questions

a) The words of the adver tisemen t are in tended to m ake people buy th e
sm oke ball.

b) It refers to anyone to c atch es fl u before or af ter th e adver tis ement

was p ublished.

c) The smoke ba ll s hould be u sed regularly for three weeks

d) In Bowen L J’s opinion the smoke ball should give protec tion du ring
th e peri od of us e.

e) The off er of a rewa rd was valid bec ause the c om pany depos ited 1000l
at t he ba nk to prove their sincer ity.
Language study
and reading for
detail
Word study: Guess the meaning

• Warranted (line 29)

• Fulfi lled (line 42)

• Insensate (line 49)

• Extravagant (53)

• Liable (61)
Complete the phrase with the information from lines
48-51
Substitute a phrase with if for unless

It would be an insensate thing to promise 100l. to a person who

used the smoke ball if...
Vocabulary: context clues

IT PAYS HIM = it gives him some advantages

If a person chooses to make extravagant promises of this kind he

probably does so because IT PAYS HIM to make them
Exercise: Find context clue that help
you to work out the meaning

T h e r e i s t h e FA L L AC Y o f t h e a r g u m e n t .

[ . . . ] a n d w hy s h o u l d n o t a n o ff e r b e m a d e t o a l l t h e w o r l d w h i c h i s t o R I P E N i n t o
a c o n t ra c t w i t h a ny b o d y w h o c o m e s f o r ­w a r d a n d p e r f o r m s t h e c o n d i t i o n ?

I t i s a n o ff e r t o b e c o m e l i a b l e t o a ny o n e w h o , b e f o r e i t i s R ET R AC T E D, p e r f o r m s
the condition, [...]

A ny a c t o f t h e p l a i n t i ff f r o m w h i c h t h e d e f e n d a n t d e r i ve s a b e n e fi t o r a d va n t a g e ,
o r a ny l a b o u r, D ET R I M E N T, o r i n c o nv e n i e n c e s u s t a i n e d b y t h e p l a i n t i ff , [ . . . ]

Can it be said here that if the person who reads this advertisement applies thrice
d a i l y, f o r s u c h t i m e a s m ay s e e m t o h i m t o l e ra b l e , t h e c a r b o l i c s m o ke b a l l t o h i s
NOSTRILS for a whole fortnight, [...]
Exercise: Find context clue that help
you to work out the meaning

Any act of the plaintiff from which the defendant derives a

BENEFIT or advantage, or any labour, detriment, or
inconvenience sustained by the plaintiff ;[...]

But I think also that the defendants received a BENEFIT from

this user, for the use of the smoke ball was contemplated by the
defendants as being indirectly a BENEFIT to them, because the
use of the smoke balls would promote their sale
Complete the sentence by choosing the correct
form of a suitable word from exercises above

a) S h e o ff e r t o p a y 3 0 0 l . Fo r t h e p a i n t i n g , b u t . . . . . . . . . . . H e r o ff e r w h e n s h e l e a r n t
that it was not an original.

b) T h e v e n d o r . . . . . . . . . . . . . . . T h e h i g h q u a l i t y o f t h e m a t e r i a l

c) T h e i d e a t h a t t h e l a w i s a l wa y s j u s t i s a .................. – even a good law may

sometimes cause injustice in individual cases.

d) I n h e r w i l l t h e t e s t a t o r c r e a t e d a t r u s t f o r t h e . . . . . . . . . . . . O f t h e p o o r.

e) A c o n t ra c t c o m e s t o a n e n d w h e n b o t h p a r t i e s h a v e . . . . . . . . . . . . . A l l t h e i r o b l i g a t i o n s

f) B a d w o r k i n g c o n d i t i o n s a t S m i t h’s L t d w e r e a s e r i o u s . . . . . . . . . . . . . . . . . To t h e
e m p l oy e e s h e a l t h . I n f a c t , i n 1 9 7 0 a g r o u p o f w o r k e r s w h o f e l l i l l s u e d t h e i r
e m p l oy e r s f o r d a m a g e s .
Reading in detail

a) C a n a n e x t r a v a g a n t o r r i d i c u l o u s p r o m i s e b e l e g a l l y b i n d i n g ?

b) W h y d o e s B o w e n L J t h i n k t h e c o m p a n y m a d e t h i s e x t r a v a g a n t p r o m i s e ?

c) T h e d e f e n d a n t s c o n t e n d t h a t y o u c a n ' t m a k e a c o n t r a c t w i t h t h e w h o l e w o r l d . W h y
doesn't Bowen L J accept this as a defence?

d) W h e n c a n a n o ff e r t o t h e w o r l d b e c o m e a c o n t r a c t ?

e) W h o d o e s a n o ff e r t o t h e w o r l d c r e a t e l e g a l r e l a t i o n s w i t h ?

f) To c r e a t e a c o n t ra c t , m u s t t h e o ff e r e e a l w a y s s t a t e t h a t s / h e a c c e p t s t h e o ff e r ?

g) W h a t h a p p e n s i f t h e c o n d i t i o n i s f u l fi l l e d a f t e r t h e o ff e r o r h a s r e t r a c t e d t h e o ff e r ?

h) I n E n g l i s h l a w a c o n t ra c t i s o n l y v a l i d i f i t i s u n d e r s e a l ( i n a s p e c i a l w r i t t e n f o r m ) o r i f
t h e r e i s ' c o n s i d e ra t i o n '. I n g e n e ra l t e r m s , w h a t i s c o n s i d e r a t i o n ?

i) W h a t w a s t h e d o u b l e c o n s i d e r a t i o n ' i n t h i s c a s e ?
Exercise: Complete Part B of the table, fi lling
in Bowen L J’s ruling in your own word

PART A PART B
Defendant’s arguement Bowen LJ’s ruling on the point of law
1. The document is very vague
2. The terms are very wide
3. it is an offer to the rest of the
world/the world at large/the
public
4. it is not a definite offer
5. The advertisement is not
undoubtedly a commitment/The
company does not intend to pay
the rewards
Phrases to introduce the legal principles
and decision contained in a judgment

It was held that....

The court held that...

It was laid down that...

The court found that....

• Describe the judgment in Carlill, using these phrases

Which rulings apply only the the specifi c facts of
Carlill?
Which rulings contain legal principles?
Ratio decidendi

Principles contained in a judgment will be binding on courts in

the future

• Example of dicta from Bowen L J’s judgment?

• Use your knowledge of the English judicial system to decide:

• Which courts are bound by the decision of Carlill
• How can the binding principles of Carlill be changed?

• Which source of law does Bowen L J use to reach his decision

in Carlill?
Development
Summerize the case

See attachement
A moot

Ch oose c as e A or c ase B below. Us e the decision in Carlill and th e

i n form ati on in your ta ble to decide the legal position of th e plain tiff an d
t he defen dan t un der the En glish law of c on tra ct.

Are al l the prin ciples of Car lill applica ble to the c as e you have c hosen,
or i s i t n eces sar y to distin gu ish s om e of t he fac ts?

P l ay th e roles of ju dge, c oun sel for plaintiff , c ounsel for defen dan t.

Issu e a sh or t written judgm en t begining like this:

“It was held th at th e pla intiff was /was n ot entitled to recover on the
g rou nds th at...”
Case A

X advertises in the local paper that she will pay a £100 reward
to anyone who fi nds and returns her lost Persian cat, Miaow. Y
fi nds Miaow two months later and takes her back to X, asking for
the reward. Meanwhile, X has bought another cat to replace
Miaow. She agrees to take her back, but refuses to pay the
reward. Y sue her for the £100.
Case B

The Superhair Company produces an expensive new product

“guaranteed to make your hair grow in only 3 weeks or your
money back” The advertisement specifi es that users must follow
the instructions on the packet carefully. Z, who is completely
bald (he has no hair at all) sees the advertisement and buys the
products. He uses it as instructed on the packet, but his hair
does not begin to grow again. When Superhair refuse to give Z
his money back, he sues them.