ISSUE OF CASE

1) Whether an advertisement can be constructed as a unilateral offer inviting acceptance to

form a contract or not?
- In this case, yes. The court held that an advertisement can be constructed as a
unilateral offer to the entire world. Unilateral contract were said to bind only the
promisor and did not bind the promise unless the promise accepted by performing the
obligations specified in the promisor’s offer.1 In this case, Mrs Carlill purchased the
carbolic smoke ball and used it as directed. Thus, its constituted the performance of
the condition in offer and acceptance of the offer which resulting in unilateral
contract.

2) Whether there is a consideration element raised in this case or not?

- Yes. The consideration element was raise in this case. Consideration may consist of a
promise to perform a desired act or a promise to refrain from doing an act that one is
legally entitled to do. In unilateral contract, an agreement by which one party makes a
promise in exchange for the other’s performance, the performance is consideration for
the promise, while the promise is consideration for the performance. In this case,
when Mrs. Carlill had used the smokeball as per instructions, there is a consideration
between Carbolic Smoke Ball and her. The court even determined the price paid by
the defendant’s customers for the Carbolic Smoke Ball to be consideration. It is
because that purchasing or merely using the smoke ball constituted good
consideration. It was a distinct detriment incurred at the behest of the company and,
furthermore, more people buying smoke balls by relying on the advert was a clear
benefits to Carbolic Smoke Ball company.2

3) Whether the advertisement posted by Carbolic Smoke ball company is one of invitation
to treat or not?
- In this case, the advertisement posted was an invitation to treat. When the Carbolic
Smoke Ball company posted the advertisement, a contract has been made the
company has be bound in contract law. To indicate the seriousness of their offer, they
stated that 1000 pounds had already deposited in Alliance Bank as a surety3. The
smoke ball company also put up and advertisement in which they offered 100 pounds
to any person who brought and used the one of their smoke ball but still caught
influenza after using it in specified manner and for a specified period. The court held
that such advertisement is an example of offer made to the world and the contract will
only be made when a person performed the condition on the faith of advertisement.

1
http://lawbrain.com/wiki/Consideration
2
https://www.lawteacher.net/free-law-essays/contract-law/carlill-v-carbolic-smoke-ball-co-contract-law-
essay.php
3
https://webstroke.co.uk/law/cases/carlill-v-carbolic-smoke-ball-co-1893
ISLAMIC PERSPECTIVES

1) Fulfilling promises and covenants is obligatory. And they point to abhorrence of the sin
of the one who breaks them or fails to fulfill them.

“And fulfil (every) covenant. Verily! The covenant, will be questioned about[al-Isra’ 17:34]
- In this case, the Carbolic Smoke Ball Company had made a promise for those who
purchased their smoke ball and used it as per directions, but still caught with
influenza, they will compensate of 100 pounds as stated in the advertisement. Based
on Islamic perspectives, if the company had made the promise to anyone even with
the entire world, he/she/they need to fulfill it or else it will be questioned about in
here after. Allah SWT has decreed for fulfilling promises great benefits in this world
and in the Hereafter, in addition to the obvious benefits of creating a righteous and
stable society.
2) In Islam, justice is considered to be supreme virtue. In Holy Quran Allah Almighty
mentioned about justice in many time.

“Indeed, Allah orders justice and good conduct and giving to relatives and forbids
immorality and bad conduct and oppression. He admonishes you that perhaps you
will be reminded.” [an-nahl 16:90]

- By doing justice means giving everyone his right. In this case, the judge is the main
points of justice. Any judgement made by judges must be right and clear all conflicts
and problems. When the court held that the case was found on Mrs. Carlill, it shows
the justice on her because of she already followed all the instruction prescribed for the
smoke ball and she just wanted to claim her compensation as promised by the smoke
ball company.
COMMENTARY

Based on this case, I agree with the judgment held by the court. It is because, in
my opinion, once Mrs. Carlill had used the smoke ball as per instructions printed, she
already accept the offers which Carbolic Smoke Ball Company had offering. By her
acceptance, the contract has been made and if any incidents happen after that, the
company should take responsibility on her. In this case, the company had posts an
advertisement of giving 100 pounds to anyone who still caught the flu even after
using their products as instruction printed. So, when Mrs. Carlill still caught the flu
even after using the products, she deserved to get the compensation from the
company.
Based on my opinion, an action takes by Mrs, Carlill which wants to brought the
cases to the court is good decision because the company refused to give that
compensation. By that, she can fight for her own justice through the court. The judges
also play their own roles with justice and fairly because Mrs.Carlill who the one had
been lied by the company because they refused to give the 100 pounds to her. So the
decision of the Court of Appeal that rejected the company’s arguments and held that
was a fully binding contract for 100 pounds with Mrs. Carlill is a good and fairly
decision.