page_title: Litigation before the judgment in Carlill v Carbolic Smoke Ball Co
section_title: Counsels' submissions
hierarchical_section_title: Litigation before the judgment in Carlill v Carbolic Smoke Ball Co / Queen's Bench / Counsels' submissions
caption_attribution_description: Caricature of Herbert Henry Asquith KC MP. Caption reads "Brains".
context_page_description: The Litigation before the judgment in Carlill v Carbolic Smoke Ball Company was a rather decorated affair, considering that a future Prime Minister served as counsel for the company. A close reading of the submissions and the decision in the Queen's Bench show that the result of the Court of Appeal was not inevitable or necessarily a decision on orthodox principles of previous case law.
context_section_description: H. H. Asquith QC (the future Prime Minister) and Herman William Loehnis represented the Carbolic Smoke Ball Co. They made three submissions. Firstly, that there was no contract, because Carbolic had not intended to create an obligation enforceable by law upon themselves, shown by the wide terms in which the advertisement was expressed. The advertisement said the "reward" was for anyone getting influenza "after having used the ball", which could mean any time in someone's life. It would be absurd to impose an obligation on the company for some who got the flu years after using the ball. Moreover, contracting the flu was not something in the plaintiff's control, and so this case should be distinguished from reward cases like Williams v Carwardine where someone positively does something to deserve a reward. Second, even if a contract existed, it should be void because of the Lottery Act, which said "wagering contracts" (gambling contracts) were unlawful and void. This was a wager, gambling, like a lottery, as in a number of cases, such as Brogden v Marriott Rourke v Short and Taylor v Smetten. Third, even if it were contract and not a wagering contract, it still would be void because it would be an insurance contract that failed to follow the prescribed form of stating people's names.
  William Graham and John Patrick Murphy QC for Mrs Carlill responded to the submissions by first arguing that there was a contract. The contract was a warranty to prevent disease that sounded in liquidated (money) damages. The advertisement was an offer. It was accepted when the conditions of the offer were performed. This could be seen in Denton v Great Northern Ry. Co. and England v Davidson Second, it was not a wager contract, and therefore not void, because Thacker v Hardy said wagers are about one side winning and another losing. Here, even if Mrs Carlill did not "win" £100, Carbolic won nothing. Third, using the smokeball could not be an insurance policy, because it was not shaped as an insurance policy.
caption: H. H. Asquith QC gave the leading submissions for the Carbolic company. In 1908 he became the Liberal Party's Prime Minister, and led Britain into World War I.
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