A company promised £100 to anyone who caught influenza after using its product. One woman took the promise literally — and the law agreed with her.
Ten items. Work through the four activities — say your answer out loud before you reveal it.
Three terms: to revoke · binding · to construe. Say the right one, then reveal.
Read each part. After it, there's a quick check (answer from memory first), then one question to discuss.
The influenza pandemic that swept Europe from 1889 killed on a scale that made people willing to try almost anything. Into that market came the Carbolic Smoke Ball: a small rubber ball filled with carbolic acid, attached to a tube, which the user squeezed into the nostril so that the vapour made the nose run. The theory — that flushing the nose expelled the disease — was wrong, but the marketing was superb.
In November 1891 the company placed an advertisement in the Pall Mall Gazette. It promised £100 to any person who contracted influenza after using the ball three times daily for two weeks according to the printed directions. And it added a sentence that would cost it the case: £1,000 had been deposited with the Alliance Bank in Regent Street, "showing our sincerity in the matter". A hundred pounds in 1892 was more than a year's wages for many working people.
Louisa Elizabeth Carlill, a woman in her early fifties living in Paddington, bought a ball and used it exactly as instructed, from the middle of November until mid-January. Then she caught influenza. Her husband — a solicitor — wrote to the company. The company did not pay. It suggested, among other things, that she might care to come to its offices and use a ball daily under the supervision of its secretary. She sued.
1. What exactly did the advertisement promise, and on what conditions?
2. Which sentence in the advertisement did the company most regret, and why?
1. £100 to any person who caught influenza after using the smoke ball three times a day for two weeks in accordance with the printed directions.
2. The statement that £1,000 had been deposited with the Alliance Bank to show its sincerity. That sentence was the company's own evidence that the promise was meant to be taken seriously — which destroyed the argument that it was mere puff.
The company's arguments deserve to be taken seriously, because each of them describes a genuine problem in the law of contract. First, the advertisement was mere puff — vague, promotional, not intended to bind. Second, you cannot make a contract with the whole world; an offer must be made to a person. Third, even if there were an offer, Mrs Carlill had never told them she was accepting it, and acceptance must be communicated. Fourth, she had given no consideration: she had bought the ball from a chemist, not from them. Fifth, the terms were hopelessly uncertain — for how long after using it did the protection last? A fortnight? A year? A lifetime?
The vagueness point was the strongest, and the court did not pretend otherwise. There were, the judges accepted, several possible readings of the period covered. But an ambiguity does not automatically defeat a promise; the court asks how an ordinary person reading the advertisement would reasonably have understood it, and adopts a construction the words can bear. Read that way, the promise covered someone who fell ill while using the ball as directed — which was exactly Mrs Carlill's position.
Behind all five defences lay a commercial reality the company could not say out loud. If the promise bound them, it bound them to every purchaser in the country who fell ill that winter — during an epidemic. The floodgates argument was not theoretical. It was the business model.
1. Name three of the company's five defences.
2. How did the court deal with the argument that the terms were too vague?
1. Any three of: it was mere puff; you cannot contract with the whole world; acceptance was never communicated; there was no consideration; the terms were too uncertain to enforce.
2. By asking how an ordinary reader would reasonably understand the words, and adopting a meaning the language could bear — here, protection while using the ball as directed. Ambiguity alone does not destroy a promise that a reasonable person would have relied on.
The Court of Appeal decided for Mrs Carlill in December 1892, and its answers have been quoted ever since. On puff: the deposit at the bank showed sincerity, and a specific, verifiable promise supported by money set aside is not extravagant sales talk. On contracting with the world: an offer may indeed be made to the whole world, but a contract arises only with the limited number of people who come forward and perform the conditions. On notification: where the offer, by its own nature, invites acceptance by conduct, the offeror is taken to have dispensed with notice — nobody expects to be told in advance that a stranger is searching for your lost dog.
On consideration the reasoning is the most elegant, because it works in two directions at once. Mrs Carlill had suffered the inconvenience of using an unpleasant device three times a day for two weeks at the company's request; and the company had received a real benefit, in the sales that its promise generated. Either was enough. The promise was binding.
What happened next is the part usually left out. The company's founder was not destroyed by the case. He formed a new company and advertised again — this time offering £200, and requiring claimants to register with the company first, to use the ball for a stated period under stated conditions, and to produce specified proof. In other words, having lost on an unconditional promise, he came back with a promise wrapped in conditions precedent. The modern promotional terms and conditions — enter by this date, retain your receipt, one per household, subject to availability — descend directly from a company that learned, expensively, what an unqualified sentence costs.
1. How can an offer be made to the whole world without creating a contract with everybody?
2. What did the company change in its next advertisement, and what does that tell you?
1. Because the offer is made generally, but a contract is formed only with those who come forward and perform the stated conditions. The class of contracting parties is defined by performance, not by the size of the audience.
2. It required registration in advance, use for a stated period on stated conditions, and specified proof — conditions precedent that control who can ever claim. The lesson learned was not "promise less" but "condition everything".
The company lost because it made a promise with nothing attached to it. Everything it should have written — and everything you will ever draft in a promotion, a warranty, a bonus scheme or a service level — lives in the small set of structures that attach conditions to an obligation.
A phone retailer is running a cashback promotion. Complete each gap with one conditional structure — one to three words.
1. Payment is due only where the customer has kept the receipt. → "Cashback will be paid the original receipt is retained."
2. No payment at all if the phone goes back. → "No cashback is payable the handset is returned within the cooling-off period."
3. The obligation continues only while the contract is live. → "The discount applies the airtime contract remains in force."
4. If a fault occurs, this is what follows. → " a manufacturing defect, the retailer will replace the handset."
5. The whole promotion depends on stock. → "All offers are availability."
1. provided that / on condition that 2. if / where 3. so long as / as long as 4. In the event of 5. subject to
Sentence 2 is the one to watch: written with unless, it would say the opposite — that cashback is payable unless the handset is returned. Negative gates need reading twice.
A hotel group has published this sentence: "Stay three nights with us and your fourth night is free." Rewrite it as a conditioned obligation. Complete each gap.
"A complimentary fourth night be provided the guest has completed three consecutive paid nights at the same property. a booking is cancelled or amended, the entitlement lapses. No entitlement arises the stay is booked through the group's own website. the guest fail to check in on the first night, the reservation shall be treated as cancelled." (gap 5: inverted conditional)
shall / will · provided that (or on condition that) · Where / If · unless · Should
Now count what the customer lost between the poster and the clause: four conditions, none of them visible in the original sentence. That gap is where regulators and complaints live.
A marketing director wants to run a campaign promising a full refund to any customer who is not satisfied. Complete your reply so that it warns without obstructing. Read it aloud when you finish.
"I'm not going to tell you not to run it. But as it stands the sentence is an offer to the world, and it will be construed against us, so let's make it deliberate. First, the entitlement should arise only the customer has used the product for the trial period — that gives us a condition precedent rather than an open door. Second, a refund is requested, we need a defined window and proof of purchase, or we cannot administer it. Third, no refund the goods are returned in a resaleable condition. Fourth, the whole campaign should be to stock and to a closing date. And take-up exceed our forecast, I'd rather we had a cap that we published from the start than a change of terms halfway through." (gap 5: inverted conditional)
once / provided that / after · where / if · unless · subject · should
Notice the last sentence: the professional move is not to hide the cap but to publish it. A condition disclosed at the start is a term; the same condition introduced later is a broken promise.
Take these into the Speak tab: you'll be defending an unconditioned promise, and then rebuilding it.
A note before we argue: the case is summarised here, figures are approximate, and legal systems differ — this is material for discussion and for language, not legal advice on any real matter.
All of it out loud, against the clock. Three registers: explaining, defending a position you may not hold, and translating the same terms for four different rooms.
Present this case to a marketing team who have never heard of it, as a warning they will actually remember. Structure it: the epidemic and the product → the advertisement and the bank deposit → what Mrs Carlill did → the five defences → the court's answers → the second advertisement.
Finish with one sentence naming the rule they should take back to their desks. Use at least five key terms (offer, acceptance, consideration, unilateral contract, mere puff, condition precedent, binding, revoke, construe, intention to create legal relations).
You are counsel for the company, in front of a modern audience. Your case: advertising is understood by everyone to be enthusiastic; treating it as contractual makes ordinary commercial language hazardous; the terms here were genuinely uncertain as to period; and the practical consequence during an epidemic is ruin for a promise nobody was expected to take literally.
Make it genuinely strong, and concede what is genuinely conceded — the bank deposit is not helpful to you. Then do it again in ninety seconds.
Take one promotional promise and deliver it four ways, one minute each. The obligation must stay the same in all four.
Prefer not to use anything of your own? Take one of these instead: