Sunday, November 13, 2005
It was Friday, November 13, 1891 -- 114 years ago today -- and influenza was rife in London. Only a year or two before, the great influenza epidemic that spread west from Russia had killed 250,000 people in Europe in 1889-90. But help was at hand. Every contracts teacher knows that on the evening of that fateful Friday the 13th, Mrs. Louisa Elizabeth Carlill opened her copy of the Pall Mall Gazette and saw an ad for a product that promised not only to "positively cure" the scourge, but to prevent users from contracting it in the first place: the Carbolic Smoke Ball. The manufacturer was so sure of its usefulness that it included the following statement:
£100 REWARD WILL BE PAID BY THE CARBOLIC SMOKE BALL CO. to any Person who contracts the Increasing Epidemic,INFLUENZA . . . after having used the CARBOLIC SMOKE BALL according to the printed directions supplied with each Ball. £1000 IS DEPOSITED with the ALLIANCE BANK, Regent Street, showing our sincerity in the matter.
Shortly thereafter, Mrs. Carlill bought one of the grenade-sized devices and began using it three times a day, beginning November 20. She continued to use it three time a day, as directed, and by January 15, 1892 was presumably counting her blessings as she read the the Queen's grandson, Prince Albert Victor, had died of the disease that day. Her luck ran out two days later, though, when she came down with the disease. In her case it wasn't fatal. But three days later -- the same day that the Prince's remains were laid to rest -- her husband wrote to the Carbolic Smoke Ball Co. demanding the reward.
The company refused to pay, and the story of the subsequent case, Carlill v. Carbolic Smoke Ball Co., is a staple of virtually every contract law casebook. The company, as we all know, had to pay.
What may be less well known is how the company responded. In a subsequent advertisement, on February 15, 1893, the sellers were back to their extravagant claims:
£100 REWARD was recently offered by the CARBOLIC SMOKE BALL CO. to anyone who contracted influenza [or various other diseases] after having used the Carbolic Smoke Ball according to the printed directions. Many thousand Carbolic Smoke Balls were sold, but only three persons claimed the reward of £100, thus proving conclusively that this invaluable remedy will prevent and cure the above-mentioned diseases.
THE CARBOLIC SMOKE BALL CO., Ltd., now offer £200 REWARD to the person who purchases a Carbolic Smoke Ball and and afterwards contracts any of the following diseases, viz, INFLUENZA . . . . or any disease caused by taking cold while using the Carbolic Smoke Ball.
But this time it's clear they got the lawyers involved:
This offer is made to those who have purchased a Carbolic Smoke Ball since January 1, 1893, and is subject to conditions to be obtained upon application, a duplicate of which must be signed and deposited with the Company in London by the applicant before commencing the treatment specified in the conditions. [Which included having to take the three doses each day at corporate headquarters.] This offer will remain open only until March 31, 1893.
The story of the case is detailed in Janice Dickin McGinnis's entertaining Carlill v. Carbolic Smoke Ball Company: Influenza, Quackery, and the Unilateral Contract. A site with reproductions of the ads and a photograph of Mrs. Carlill is here.
[Val Ricks of South Texas justly reminds us that the "gold standard" for coverage of Smoke Ball is A.W.B. Simpson, Quackery and Contract Law: The Case of the Carbolic Smoke Ball, 14 J. Legal Stud. 345 (1985), which also features in his Leading Cases in the Common Law (1995).]