In the 1889-1892 pandemic, the Russian or Asiatic Flu killed more than 1,000,000 people worldwide, and today is thought to have been caused by human coronavirus OC43, so WuFlu is nothing new.
Entire cities throughout Europe shut down, including postal services, banks and trains. Even the Courts were closed, but unlike today Zoom was not available. Death was rife in London, Paris, Vienna and Berlin. Members of royalty died, including Queen Victoria’s grandson Prince Albert Victor aged 28, who was second in line to the English throne.
Prince Albert Victor
Hundreds of celebrities died, as did the young and the old. None of the suggested remedies worked, including alcohol, quinine, milk and eggs. This opened the door to entrepreneurs.
An enterprising company was incorporated in the United States of America known as the Carbolic Smoke Ball Co (Company). It claimed that inhaling the fumes of carbolic acid, also known as phenol, would destroy the cause of the flu, which in those days was unknown. Phenol is a dark thick liquid, and when I was a kid, we used to pour it into the pan in the dunny down by the back lane after use. I can close my eyes and still smell it today. It is not nice.
The Company sold the rubber carbolic ball with tube attached. The ball would be filled with phenol, the tube inserted into the nose, and the ball squeezed. This would cause the nose to run, supposedly flushing out the infection.
The Company placed an advertisement in an English newspaper as depicted below, stating in part:
100 pounds 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 ball three times daily for two weeks according to the printed directions supplied with each ball. 1,000 pounds is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter.
The sum of one hundred pounds then, would be equivalent to over ten thousand pounds today, and the sum of one thousand pounds then would be equivalent to over one hundred thousand pounds today.
Louisa Carlill read the add and purchased the Smoke Ball, and used it as recommended for three months, following which she caught the flu in 1892, shortly after Prince Albert Victor died. She claimed the one hundred pounds from the Company, which of course refused to pay. She commenced litigation in the Queens Bench Court which found in her favour, despite the Company arguing that the advertisement was mere puff, and the ad was not directed at anyone in particular.
The Court found in favour of Louisa, and the Company appealed to the English Court of Appeal in December 1892.
The Court of Appeal dismissed the appeal in 1893, and stated the requirements for a contract to be legally binding, which are:
- There must be a specific offer being capable of acceptance, which was the case here, as the offer was directed to any person who purchased the Smoke Ball, and not just to the world at large.
- There must be an intention to create legal relations which was the case here, as one thousand pounds was deposited in the bank by the Company, so the offer could not be mere puff.
- There must be acceptance of the offer, which occurred when Louisa purchased the smoke Ball.
- There must be consideration, which was the promotional advantage gained by the Company by Louisa using the Smoke Ball.
This is the law today, even though legislation can, and does void contracts, including cases of duress, misleading or deceptive conduct, or unconscionability.
Binding contracts can be either oral or in writing, or a combination of both. As a strange quirk in our law, when an agreement is made as a deed, expressed to be signed, sealed and delivered, consideration is not required. Consideration can be any quid pro quo but is usually money.
The following is an extract from the judgment of Lord Justice Lindley in The Court of Appeal:
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.
Then it is contended that it is not binding. In the first place, it is said that it is not made with anybody in particular. Now that point is common to the words of this advertisement and to the words of all other advertisements offering rewards. They are offers to anybody who performs the conditions named in the advertisement, and anybody who does perform the condition accepts the offer. In point of law this advertisement is an offer to pay £100 to anybody who will perform these conditions, and the performance of the conditions is the acceptance of the offer. That rests upon a string of authorities, the earliest of which is Williams v. Carwardine 4 B. Ad. 621, which has been followed by many other decisions upon advertisements offering rewards.
But then it is said, "Supposing that the performance of the conditions is an acceptance of the offer, that acceptance ought to have been notified." Unquestionably, as a general proposition, when an offer is made, it is necessary in order to make a binding contract, not only that it should be accepted, but that the acceptance should be notified. But is that so in cases of this kind? I apprehend that they are an exception to that rule, or, if not an exception, they are open to the observation that the notification of the acceptance need not precede the performance. This offer is a continuing offer. It was never revoked, and if notice of acceptance is required — which I doubt very much, for I rather think the true view is that which was expressed and explained by Lord Blackburn in the case of Brogden v. Metropolitan Ry. Co. 2 App. Cas. 666, 691 — if notice of acceptance is required, the person who makes the offer gets the notice of acceptance contemporaneously with his notice of the performance of the condition. If he gets notice of the acceptance before his offer is revoked, that in principle is all you want. I, however, think that the true view, in a case of this kind, is that the person who makes the over shews by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance apart from notice of the performance.
Lord Justice Lindley
It is to be hoped that the powers that be do not read this article, as Carbolic Smoke Balls will become mandatory.
