On November 13, 1891, an advert was printed in newspapers across the UK offering £100 to anyone willing to act as a human guinea-pig for a dubious new flu cure. The advert would result in consequences that are still being felt more than 100 years later, and become the benchmark against which all modern contract law and consumer protection cases are measured.

England, 1891

With more than one million people dead worldwide, and cases continuing to rip through England, it is perhaps unsurprising that Louisa Carlill was looking for protection during the 1891 Influenza pandemic. The Russian flu, which experts now believe was a deadly subtype of influenza, had no known cure, and was indiscriminately wiping out entire families throughout Europe.

Enter the Carbolic Smoke Ball Company.

The UK based company created a device that it claimed could protect users against all manner of ailments: hay fever, whooping cough, croup, and of course, influenza. The instrument consisted of a rubber ball filled with powdered carbolic acid, and a tube attached for the user to inhale through. When the ball was squeezed a puff of powder would enter their nostrils, making their nose run and, according to its inventor, flush out any infection.

The Carbolic Smoke Ball Company was so confident the device would work that it offered £100 (a very large sum of money at the time) to anyone who used the device correctly and still caught influenza. This promise was published in newspapers across the country, including The Pall Mall Gazette, where it caught the attention of Mrs Carlill.

Convinced by the ad, she bought a ball and used it three times a day for two months. However, despite the ample doses of carbolic acid lining her nostrils, after two months of using the device exactly as directed, Mrs Carlill caught the flu.

Unluckily for the Carbolic Smoke Ball Company, her husband, Mr Carlill, was a solicitor. He bombarded the company with letters requesting the promised money but was given a myriad of excuses. After a few months of back and forth, Carlill took the company to court.

Promise or puff?

The company, confident as it was of its product, argued that the monetary reward was a “mere puff” and not intended to be a serious offer. Lawyers for the defense said that as there was nothing of value passing between them, no limit to who the advert could have applied to, and no way of proving that Mrs Carlill had even used the device properly, that there was no case to be heard.

The argument failed. The judges ruled that the company had entered a contract with Mrs Carlill, as the advert was restricted to those who acted upon it. Doing so meant the offer had been accepted. With regard to good consideration, the judges deemed that as the company had benefited from the advert, there was an intention to be legally bound by the offer.

Summarising his decision, Lord Justice Lindley said: “We must first consider whether this was intended to be a promise at all, or whether it was a mere puff which meant nothing. Was it a mere puff? My answer to that question is No, and I base my answer upon this passage: “£1000. is deposited with the Alliance Bank, shewing our sincerity in the matter.”

Now, for what was that money deposited or that statement made except to negative the suggestion that this was a mere puff and meant nothing at all? The deposit is called in aid by the advertiser as proof of his sincerity in the matter — that is, the sincerity of his promise to pay this £100. in the event which he has specified. I say this for the purpose of giving point to the observation that we are not inferring a promise; there is the promise, as plain as words can make it.”

Despite losing the case, and a subsequent right to appeal, the company continued its aggressive marketing strategy, upping its offer of recompense to £200. They were not taken to court again, but the principles agreed upon in the initial case came to define an entirely fresh way of looking at contract law and consumer protection. Since 1891, misleading advertising has become a criminal offense.

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