Carlill v Carbolic Smoke Ball Company
Proof, should you need it, that you don’t have to sign a contract for it to be legally binding. AstraZeneca, eat your heart out.
|
The Jolly Contrarian Law Reports
Our own, snippy, in-house court reporting service. 
|
Harking back to our theory that a written contract is simply the earthly memorial of a spiritual contact, the unsigned unilateral contract, is a curious exception. The most famous example, pictured right, is the Carbolic Smoke Ball Co. Ltd.’s advertisement in the London Illustrated News during the latter part of the coronavirus lockdown in 2020. An subscriber to the News accepted the unilateral offer by purchasing the advertiser’s smoke-ball. The ensuing dispute was reported in Carlill v Carbolic Smoke Ball Company [1893] 1QB 256.
Here, the operating theory is that there is no other communication, understanding or preceding relationship from which one could infer contractual relations. The opera and exceptor have never met each other. Therefore, the written terms of the contract and the spiritual essence of the contract are identical. It is almost as if affecting one's signature to a contract, counterintuitively, dissociates that form from the bargain itself. The signature is the lady protesting too much: it is a statement that this memorial is a written representation of something else.
Issues
Does an accepted have to communicate acceptance to the offeror? No. Per Lindley, LJ:
“... if notice of acceptance is required, the person who makes the offer gets the notice of acceptance contemporaneously with his notice of the performance of the condition. If he gets notice of the acceptance before his offer is revoked, that in principle is all you want. I, however, think that the true view, in a case of this kind, is that the person who makes the [offer] shews by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance apart from notice of the performance.”
Bowen LJ: {{quote|“One cannot doubt that, as an ordinary rule of law, an acceptance of an offer made ought to be notified to the person who makes the offer, in order that the two minds may come together. Unless this is done the two minds may be apart, and there is not that consensus which is necessary according to the English law — I say nothing about the laws of other countries — to make a contract. But there is this clear gloss to be made upon that doctrine, that as notification of acceptance is required for the benefit of the person who makes the offer, the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so, and I suppose there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance” Is there consideration? Yes. Per Lindley, LJ:
“It is said that the use of the ball is no advantage to them, and that what benefits them is the sale; and the case is put that a lot of these balls might be stolen, and that it would be no advantage to the defendants if the thief or other people used them. The answer to that, I think, is as follows. It is quite obvious that in the view of the advertisers a use by the public of their remedy, if they can only get the public to have confidence enough to use it, will react and produce a sale which is directly beneficial to them. Therefore, the advertisers get out of the use an advantage which is enough to constitute a consideration.”
With whom is the contract made? {{quote|It is not a contract made with all the world. There is the fallacy of the argument. It is an offer made to all the world; and why should not an offer be made to all the world which is to ripen into a contract with anybody who comes forward and performs the condition? It is an offer to become liable to any one who, before it is retracted, performs the condition, and, although the offer is made to the world, the contract is made with that limited portion of the public who come forward and perform the condition on the faith of the advertisement.
Their lordships do not seem to have considered whether one needed to have read the advertisement before purchasing the balls; but it is hard to see how one could sensibly have reached consensus one did not know was even on offer.