Carlill v. Carbolic Smoke Ball Company: Influenza, Quackery, and the Unilateral Contract

Abstract

The influenza epidemic of 1889-90 inadvertently produced one of the greatest legal precedents in the doctrine of contracts. Carlill v. Carbolic Smoke Ball Company involved litigation over a £100 reward offered by the advertisers to users of the smoke ball who nonetheless contracted influenza. Despite Emily Carlill's fulfillment of the requirements, Carbolic refused to pay her the money on several grounds, including the argument that this type of advertisement did not tell the truth and was not expected to do so by the general public. Against the background of an epidemic that had not only generally disrupted life in Britain and the rest of Europe but had killed, among others, the eldest son of the Prince of Wales, the court set out to hold Carbolic to its word. Given the uncertain state of medical science during this era, the judges did not have to hand any statutory weapons, nor could Mrs. Carlill's lawyers probably have argued fraud successfully. Therefore, although the case and its extremely clever argument of various legal doctrines has become a classic of the law of unilateral contracts, it could not fundamentally undermine quackery. The Carbolic Smoke Ball Company in short order adjusted its advertisements and carried on with impunity.