Passage 2 

London housewife Lousia Carlill went down with flu. She was shocked. For two months she had inhaled thrice daily from a carbolic smoke ball, a preventive measure guaranteed to fend off flu—if you believed the advert. Which she did and why shouldn’ t she when the Carbolic Smoke Ball Company had promised to cough up ￡ 100 for any customer who feel ill. 

The flu started in the spring of 1889. The first reports came from Russia, however London was especially hard-hit. At the height of the third wave in 1892, 200 people were buried every day at just one London cemetery. The public grew increasingly fearful. The medical profession had no answer to the disease. This flu, which might not even have begun in Russia, was a mystery. What caused it and how did it spread? No one could agree on anything. 

By now, the theory that micro-organisms caused disease was gaining ground, but no one had identified an organism responsible for flu(and wouldn’ t until 1933) . In the absence of a germ, many clung to the old idea of bad airs, or miasmas, possibly stirred by some great physical force earthquakes, perhaps, or electrical phenomena in the upper atmosphere, even a passing comet. 

Not surprisingly, people looked elsewhere for help. Hoping to cash in while the pandemic lasted, purveyors of patent medicines competed for the public’ s custom with ever more outrageous advertisements. One of the most successful was the Carbolic Smoke Ball Company. In summer of 1890 sales were steady at 300 smoke balls a moth. In January 1891, the figure skyrocketed to 1500. 

Eager to exploit the public’ s mounting panic, the Carbolic Smoke Ball Company made increasingly extravagant claims. On 13 November 1892, its latest advert in the Pall Mall Gazette caught the eye of London housewife Lousia Carlill. “Carbolic Smoke Ball” it declared, “will positively cure” colds, coughs, asthma, influenza, whooping cough. . , the list went on. But it was the nest part put Mrs. Carlill found compelling: “￡ 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds or any disease caused by taking cold, after having used the carbolic smoke ball according to the printed direction supplied with each ball. ￡ 1, 000 is deposited with the Alliance bank, Regent Street, showing our sincerity in the matter. ” 

Mrs. Carlill hurried off to buy a smoke ball, price 10 shillings. After carefully reading the instructions she diligently dosed herself thrice daily until 17 January— when she fell ill. On 20 January, Lousia’ s husband wrote to the Carbolic Smoke Ball Company. His wife, he wrote, had seen their advert and bought a smoke ball on the strength of it. She had followed the instructions to the letter, and yet now—as their doctor could confirm—she had flu. There was no reply. But ￡ 100 was not a sum to be sneezed at. Mr. Carlill persisted. The company resisted. 

Lousia recovered and sued. In June, Mr. Justice Hawkins found in Mrs. Carlill’ s favor. The company’ s main defense was that adverts were merely “puffery” and only an idiot would believe such extravagant claims. Judge Hawkins pointed out that adverts were not aimed at the wise and thoughtful, but at the credulous and weak. A vendor who made a promise “must not be surprised if occasionally he is held to his promise. ” 

Carbolic appealed. In December, three lord justices considered the case. Carbolic’ s lawyers tried several liens of defense. But in the end the case came down to a dingle matter: not whether the remedy was useless, or whether Carbolic had committed fraud, but whether its advert constituted contract—which the company had broken. A contract required agreement between two parties, argued Carbolic lawyers. What agreement had Mrs. Carlill made with them? 

There were times, the judges decided, when a contract could be one-sided. The advert had made a very specific offer to purchasers: protection form flu ore 100. By using the smoke ball as instructed, Mrs. Carlill had accepted that offer. The company might just have wriggled out of it if it hadn’ t added the bit about the ￡ 1, 000 deposit. That, said the judges, gave buyers reason to believe Carbolic meant, what it said. “It seems to me that if a person chooses to make extravagant promises of this kind, he probably does so because it pays him to make them, and, if he has made them, the extravagance of the promises is no reason in law why he should not be bound by them” pronounced Lord Justice Bowen. Lousia got her ￡ 100. The case established the principle of the unilateral contract and is frequently cited today.