The public would interpret this to mean that if someone used the ball of carbolic smoke three times a day for two weeks after the ad was published and then caught the cold, they would be entitled to the reward. His seigneury believed that there were two possible time limits within which the claim could be made, but preferred the interpretation that the reward would be opened while the smokeball was still in use: after the action, Mr. Roe founded a new limited liability company and began advertising again. Many people conclude after reading the case that the Carbolic Smoke Ball Company has been overthrown by thousands of lawsuits. The company had no limited liability, which could have meant personal ruin for Mr. Roe. In its submissions to the Court of Appeal, Finlay QC cited this as an argument against liability. He said 10,000 people could now sniff balls of smoke in the hope of their £100, and it would be a travesty to bankrupt this unfortunate company. But that didn`t happen at all.
In a new advertisement in the Illustrated London News on 25 Feb. 1893, Mr. Roe skilfully used the entire lost affair to his advantage. He described the guilty advertisement and later stated that The Carbolic Smoke Ball Co. had made a product called “smoke ball” and claimed it was a cure for the flu and a number of other diseases. (The 1889-1890 flu pandemic killed an estimated 1 million people.) The smoke ball was a rubber ball with a pipe attached. It was filled with carbolic acid (or phenol). The hose would be inserted into the user`s nose and compressed to the bottom to release the fumes. The nose ran and was supposed to eliminate viral infections.
However, Bowen LJ pointed out that “notification of acceptance is required for the benefit of the person making the offer” and that that person “may waive a notice to himself if he deems it desirable.” If the person making the offer “expressly or implicitly indicates in his offer that it is sufficient to respond to the offer without informing himself of the acceptance, compliance with the condition is sufficient acceptance without notice”. In advertising cases: A ball of carbolic smoke lasts several months to a family, making it the cheapest way in the world for the price of 10s. post-free. The ball can be reloaded at the price of 5s. Address: “Carbolic Smoke Ball Company”, 27, Princes Street, Hanover Square, London. The case involved a flu remedy called a “carbolic smoke ball.” The manufacturer announced that buyers who found it didn`t work would receive £100, a significant sum of money at the time. It was found that the company was bound by its advertisement, which was interpreted as an offer that the buyer accepted using the smoke ball and established a contract. The Court of Appeal ruled that all the essential elements of a contract were present, including offer and acceptance, consideration and the intention to establish legal relationships.
But then he says, “Assuming that compliance with the conditions is an acceptance of the offer, that acceptance should have been communicated.” Undoubtedly, when submitting a tender, it is necessary to conclude a binding contract, not only that it is accepted, but also that the acceptance is communicated. But is this the case in cases of this kind? I am concerned that they are an exception to this rule or, if they are not an exception, that they are open to the conclusion that notification does not necessarily have to precede acceptance of the service. This offer is a continuous offer. It has never been revoked, and if a declaration of acceptance is required – which I very much doubt, because I rather think that the true view is that expressed and explained by Lord Blackburn in Brogden v. Metropolitan Ry Co[5] – when a declaration of acceptance is required, the person making the offer will receive the declaration of acceptance together with his notification of the fulfilment of the condition. If he becomes aware of the acceptance before revoking his offer, that`s basically all you want. However, I think the real opinion in such a case is that the person making the offer demonstrates, by his language and by the nature of the undertaking, that he does not expect and does not require notification of acceptance, with the exception of notification of performance. In a much more recent American case in the Southern District of New York, Leonard v. Pepsico, Inc.[21] Judge Kimba Wood wrote: “Well, if it is the law, how are we supposed to know if the person making the offer announces that the notification of acceptance will not be necessary to form a binding agreement? In many cases, you look at the offer itself. In many cases, you infer from the nature of the transaction that notification is not required, and in cases of publicity, it seems to me to draw a conclusion from the transaction itself that a person should not communicate his or her acceptance of the offer before fulfilling the condition, but that if he or she fulfills the condition, a notice will be rescinded. It seems to me that, from the point of view of common sense, no other idea could be considered.
If I tell the world that my dog is lost and everyone who takes him to a certain place gets money, do all the police officers or other people whose job it is to find lost dogs have to sit down and write me a note saying that they have accepted my proposal? Why, of course, do they immediately take care of the dog, and as soon as they find the dog, they have carried out the condition. The essence of the transaction is that the dog should be found, and in such circumstances, it seems to me, there does not need to be a notice of acceptance to make the contract binding. It follows from the nature of the question that compliance with the condition constitutes sufficient acceptance without notice of the condition, and a person who makes an offer in such advertising makes an offer which must be read in the light of that reasonable reflection. It therefore implicitly emphasises in its offer that it does not need notification of acceptance of the offer. It provides an excellent study of the basic principles of the treaty and their connection to everyday life. The case remains a good right. It still binds the lower courts of England and Wales and is cited by the judges with approval. [12] However, in addition to the contractual remedy granted to users, the same situation would result in a number of additional legal remedies and penalties if a person filed a complaint on the same terms today. During the last flu epidemic, several thousand balls of carbolic smoke were sold as a preventive measure against this disease, and in no established case was the disease contracted by those who used the carbolic smoke ball. Finally, it was said that there was no consideration and that it was Nudum pactum.
There are two considerations to consider. One is to take into account the disadvantage of having to use this ball of carbolic smoke three times a day for two weeks; and the other more important consideration is the monetary gain that the defendants might incur as a result of the increase in the plaintiff`s sale of the smoke balls due to the user.