Lincoln Lawyer: How a flu remedy changed contract law forever

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— Kate Reynolds joined McKinnells Solicitors in Lincoln in 2011, after she qualified as a solicitor in 2008 and worked on a wide range of both contentious and non-contentious matters including employment matters, judicial review proceedings, planning disputes, boundary disputes and construction work including advice on contracts and adjudication.

Back in the 1890’s, Louisa Carlill was a keen reader of The Pall Mall Gazette, a Victorian equivalent of Hello. As well as stories about the celebrities of the day, the magazine carried adverts for patent medicines, all very popular at the time. Most did no good – and those containing lead or arsenic were positively harmful. They were, though, advertised with very grand claims for how well they worked.

One such advert was for The Carbolic Smoke Ball, which basically squirted carbolic acid into the nasal passages supposedly curing all sorts of respiratory problems, including flu. The advert itself implied that the Empress of Germany and the Duke of Edinburgh had used the Smoke Ball, amongst others.

More particularly, the advert stated that if anyone who bought a Smoke Ball and used it in accordance with the instructions, but still contracted influenza, then the company would pay them £100. This was a considerable sum of money in 1892.

In late 1891 Louisa bought one of the smoke balls. She used it for two months, strictly following the instructions. In January 1892 she contracted influenza. Unfortunately for the company behind the Smoke Ball, Louisa’s husband was a solicitor. Once Louisa had recovered, he advised her to write to claim her £100. The company ignored her to start with and, when she persisted, fobbed her off. Eventually, Louisa sued them. The case went to the Court of Appeal.

The company tried all sorts of arguments to wriggle out of paying. Their barrister argued that the offer was just a bet, and so could not be enforced, or that as an advert no one was meant to take it seriously. Despite his ingenuity, the court decided Louisa was due her money. The advert constituted an offer to those who bought the Smoke Ball. Louisa had complied with the terms. She had become ill and was entitled to the money because a contract had been established in law.

That is not quite the end though. It would have been expected that Louisa’s claim would have been followed by many more. In fact, only two others claimed the £100. The company used this to their advantage and then ran the adverts again. This time offering £200 on the basis that only three people had claimed the £100 reward so therefore it must be an effective remedy!

Despite this, the company did not survive and was wound up a few years later. And Louisa? She died in 1942 aged 96. Cause of death? Influenza.

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