MY FAVOURITE CASE: Michael V O'MahonyAn 1890s ad that claimed a product would prevent a person from contracting flu is still a headline case for showing advertisers the kind of claims they should never make
What is your favourite case?
The 1892 case of Carlill v Carbolic Smoke Ball Company, which related to an advertisement placed in the Pall Mall Gazette promoting the use of the defendant’s carbolic smoke ball to prevent a person from contracting influenza, and promising £100 to any user who did get the flu.
The facts of the case conjure up a Punch-like cartoon image of a Victorian lady, head covered with a towel, leaning over and breathing in waves of carbolic smoke fumes.
The actual text of the advert is part of what makes this case amusing. Every element of it was analysed during the case. As well as promising a £100 reward, the company also said that £1,000 had been deposited with Alliance Bank of Regent Street “showing our sincerity in the matter”. It also said: “During the last epidemic of influenza many thousands of carbolic smoke balls were sold as preventatives of this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball.
“One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s. post free.”
On the faith of this advert, Mrs Carlill bought and used the smoke ball as directed for two months, but in January 1892 nevertheless did contract the flu. She then bravely embarked on a claim for the £100 promised in the advert – £100 in those days being a very tidy sum indeed.
The defendants unsuccessfully argued that the advert was a mere “advertising puff”, which was never intended to create a legal relationship with any individual purchaser of a smoke ball in reliance on it.
Secondly, they argued that if a contract was thereby created, it was void as a wagering contract. They also put forward the argument that it was an illegal form of contract insurance.
However, Mrs Carlill’s fortitude paid off – she succeeded in both the English high court and court of appeal, and recovered the £100 plus her legal costs. Both courts held the reliance by Mrs Carlill on the advert established a contract by the defendants to pay her £100 in the event that happened.
Why is this your favourite case?
In the 1970s I lectured on a subject described as mercantile law (substantially the law of contract) as part of the UCD BComm night course. The students concerned were all mature, well-motivated working people attending three hours of lectures each weekday evening after work.
The Carlill case exemplified a number of legal principles relating to the formation of a contract, which can be expressed in simple terms as an offer by one party that is accepted by another where something of value (ie consideration) passes between the two parties.
Not too many cases exemplifying contract principles have a human face on them, but the Carbolic Smoke Ball Company case did. I found that despite the weariness the students were feeling after a long day, the facts and imagery of this case enlivened proceedings and got an active response from the class.
I particularly remember one student identifying himself as working in advertising and expounding that the copywriter who drafted the Pall Mall Gazette advert ought to have been shot for his stupidity in incorporating an actual promise in the advert.
The student offered to redraft the advert in a way that would extol in a most persuasive way the alleged efficacy of the smoke ball but without the risk of it constituting an offer to the whole world capable of creating a contract with someone using it.
Is this case still relevant?
The Carlill case, more than any other “promise to the world”-type case, is the headline case in terms of showing advertisers where not to go.
One of the appeal court judges, Lord Justice Lindley, put it succinctly: “It appears to me, therefore, that the defendants must perform their promise, and, if they have been so unwary as to expose themselves to a great many actions, so much the worse for them.”
To avoid that risk, advertisers, while still engaging in what has been described as “the eulogistic commendation of the res vendita” (ie using merely laudatory commendation of what is being sold), do not actually make binding promises about the product being promoted.
How often do we hear spot adverts on the radio expounding the virtues of a particular product but then concluding in a quieter tone that “terms and conditions apply”? This is to ensure that an unconditional and open commitment is not made to a listener who purchases the product on the strength of what is said.
Remember, in most instances nowadays it is still a case of caveat emptor (let the buyer beware). The formidable Mrs Carlill was a notable exception.
Michael O’Mahony is a retired solicitor and former president of the Law Society