Case Note: Carlill v Carbolic Smokeball

So the law can seem to be this elusive phenomenon …



Actually it is normal people with disputes who need a solution which is provided by the courts – judges decisions. Lawyers will present cases on behalf of the parties involved in the case.

England & Wales is governed by a common law legal system. This means that decisions set by higher courts must be followed by the lower courts in a similar set of facts. The decision (case) is said to set precedent and becomes the authority for the principle that comes out of it. This concept is termed ‘stare decisis’ (Latin – Let the decision stand). Therefore a decision from The Supreme Court of England & Wales, highest court in the land, will bind every other court.

The focus here is on one such case decided at the Court of Appeal – Carlill v Carbolic Smokeball –  probably the first case taught to every law student.

A little old lady, Mrs Carlill, bought a product called the ‘Smokeball’ which was advertised to prevent influenza. Much boasting was done in the product’s credibility; with the deposit of £1000.00 placed into the company’s accounts to refund anyone who purchased and used the product yet contracted the flu. Mrs. Carlill did as prescribed but – of course you know where this is headed – got the flu.


The company (through their lawyers) argued that there was no sincerity in the content of their advertisement and it could not be an offer but was mere puffery to incite purchasing. Therefore there could be no contract and they owed no refund to Mrs Carlill.

A contract = offer+acceptance+consideration+intention to create legal relations.

Principle from case (in the context of Contract Law): Such an advertisement would be considered an offer and acceptance takes place as soon as anyone performs the prescribed acts. Where a seller/offeror stipulates specific terms as in this case, they in essence waive the need for acceptance to be communicated but by the performance requested.

It makes perfect sense that the refund should have been granted, doesn’t it.

So I definitely agree with a certain Justice of the Supreme Court who said the law is just logic with knobs on.

Please pop any questions or thoughts in the comments.

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Carlill v. Carbolic Smoke Ball Co. [1893] Q.B. 256 (C.A.).


2 thoughts on “Case Note: Carlill v Carbolic Smokeball

  1. Interesting.the customer has no way of knowing that there was no sincerity in the refund policy provided by the company.Also by providing $1000.00 in an account to cater for someone catching influenza indirectly suggest that a legitimate contract is entered into once the product was purchased and it failed.It is absolutely absurd to suggest that it is the customers duty to know if they have entered into a legally binding contract in this scenario.

    Liked by 1 person

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