<P> Then we were pressed with Gerhard v Bates . In Gerhard v Bates, which arose upon demurrer, the point upon which the action failed was that the plaintiff did not allege that the promise was made to the class of which alone the plaintiff was a member, and that therefore there was no privity between the plaintiffs and the defendant . Then Lord Campbell went on to give a second reason . If his first reason was not enough, and the plaintiff and the defendant there had come together as contracting parties and the only question was consideration, it seems to me Lord Campbell's reasoning would not have been sound . It is only to be supported by reading it as an additional reason for thinking that they had not come into the relation of contracting parties; but, if so, the language was superfluous . The truth is, that if in that case you had found a contract between the parties there would have been no difficulty about consideration; but you could not find such a contract . Here, in the same way, if you once make up your mind that there was a promise made to this lady who is the plaintiff, as one of the public--a promise made to her that if she used the smoke ball three times daily for a fortnight and got the influenza, she should have 100l., it seems to me that her using the smoke ball was sufficient consideration . I cannot picture to myself the view of the law on which the contrary could be held when you have once found who are the contracting parties . If I say to a person, "If you use such and such a medicine for a week I will give you 5l.," and he uses it, there is ample consideration for the promise . </P> <P> AL Smith LJ's judgment was more general and concurred with both Lindley LJ and Bowen LJ's decisions . </P> <Table> <Tr> <Td> "</Td> <Td> Sir A.L. Smith was the Master of the Rolls for a year before he died in 1901 . <P> The first point in this case is, whether the defendants' advertisement which appeared in the Pall Mall Gazette was an offer which, when accepted and its conditions performed, constituted a promise to pay, assuming there was good consideration to uphold that promise, or whether it was only a puff from which no promise could be implied, or, as put by Mr. Finlay, a mere statement by the defendants of the confidence they entertained in the efficacy of their remedy . Or as I might put it in the words of Lord Campbell in Denton v Great Northern Ry. Co., whether this advertisement was mere waste paper . That is the first matter to be determined . It seems to me that this advertisement reads as follows: </P> <P> "100l . reward will be paid by the Carbolic Smoke Ball Company to any person who after having used the ball three times daily for two weeks according to the printed directions supplied with such ball contracts the increasing epidemic influenza, colds, or any diseases caused by taking cold . The ball will last a family several months, and can be refilled at a cost of 5s ." </P> <P> If I may paraphrase it, it means this: "If you" - that is one of the public as yet not ascertained, but who, as Lindley and Bowen, L. JJ., have pointed out, will be ascertained by the performing the condition--"will hereafter use my smoke ball three times daily for two weeks according to my printed directions, I will pay you 100l . if you contract the influenza within the period mentioned in the advertisement ." Now, is there not a request there? It comes to this: "In consideration of your buying my smoke ball, and then using it as I prescribe, I promise that if you catch the influenza within a certain time I will pay you 100l ." It must not be forgotten that this advertisement states that as security for what is being offered, and as proof of the sincerity of the offer, 1000l. is actually lodged at the bank where with to satisfy any possible demands which might be made in the event of the conditions contained therein being fulfilled and a person catching the epidemic so as to entitle him to the 100l . How can it be said that such a statement as that embodied only a mere expression of confidence in the wares which the defendants had to sell? I cannot read the advertisement in any such way . In my judgment, the advertisement was an offer intended to be acted upon, and when accepted and the conditions performed constituted a binding promise on which an action would lie, assuming there was consideration for that promise . The defendants have contended that it was a promise in honour or an agreement or a contract in honour--whatever that may mean . I understand that if there is no consideration for a promise, it may be a promise in honour, or, as we should call it, a promise without consideration and nudum pactum; but if anything else is meant, I do not understand it . I do not understand what a bargain or a promise or an agreement in honour is unless it is one on which an action cannot be brought because it is nudum pactum, and about nudum pactum I will say a word in a moment . </P> <P> In my judgment, therefore, this first point fails, and this was an offer intended to be acted upon, and, when acted upon and the conditions performed, constituted a promise to pay . </P> <P> In the next place, it was said that the promise was too wide, because there is no limit of time within which the person has to catch the epidemic . There are three possible limits of time to this contract . The first is, catching the epidemic during its continuance; the second is, catching the influenza during the time you are using the ball; the third is, catching the influenza within a reasonable time after the expiration of the two weeks during which you have used the ball three times daily . It is not necessary to say which is the correct construction of this contract, for no question arises thereon . Whichever is the true construction, there is sufficient limit of time so as not to make the contract too vague on that account . </P> <P> Then it was argued, that if the advertisement constituted an offer which might culminate in a contract if it was accepted, and its conditions performed, yet it was not accepted by the plaintiff in the manner contemplated, and that the offer contemplated was such that notice of the acceptance had to be given by the party using the carbolic ball to the defendants before user, so that the defendants might be at liberty to superintend the experiment . All I can say is, that there is no such clause in the advertisement, and that, in my judgment, no such clause can be read into it; and I entirely agree with what has fallen from my Brothers, that this is one of those cases in which a performance of the condition by using these smoke balls for two weeks three times a day is an acceptance of the offer . </P> <P> It was then said there was no person named in the advertisement with whom any contract was made . That, I suppose, has taken place in every case in which actions on advertisements have been maintained, from the time of Williams v Carwardine, and before that, down to the present day . I have nothing to add to what has been said on that subject, except that a person becomes a persona designata and able to sue, when he performs the conditions mentioned in the advertisement . </P> <P> Lastly, it was said that there was no consideration, and that it was nudum pactum . There are two considerations here . One is the consideration of the inconvenience of having to use this carbolic smoke ball for two weeks three times a day; and the other more important consideration is the money gain likely to accrue to the defendants by the enhanced sale of the smoke balls, by reason of the plaintiff's user of them . There is ample consideration to support this promise . I have only to add that as regards the policy and the wagering points, in my judgment, there is nothing in either of them . </P> </Td> <Td>" </Td> </Tr> </Table> <Tr> <Td> "</Td> <Td> Sir A.L. Smith was the Master of the Rolls for a year before he died in 1901 . <P> The first point in this case is, whether the defendants' advertisement which appeared in the Pall Mall Gazette was an offer which, when accepted and its conditions performed, constituted a promise to pay, assuming there was good consideration to uphold that promise, or whether it was only a puff from which no promise could be implied, or, as put by Mr. Finlay, a mere statement by the defendants of the confidence they entertained in the efficacy of their remedy . Or as I might put it in the words of Lord Campbell in Denton v Great Northern Ry. Co., whether this advertisement was mere waste paper . That is the first matter to be determined . It seems to me that this advertisement reads as follows: </P> <P> "100l . reward will be paid by the Carbolic Smoke Ball Company to any person who after having used the ball three times daily for two weeks according to the printed directions supplied with such ball contracts the increasing epidemic influenza, colds, or any diseases caused by taking cold . The ball will last a family several months, and can be refilled at a cost of 5s ." </P> <P> If I may paraphrase it, it means this: "If you" - that is one of the public as yet not ascertained, but who, as Lindley and Bowen, L. JJ., have pointed out, will be ascertained by the performing the condition--"will hereafter use my smoke ball three times daily for two weeks according to my printed directions, I will pay you 100l . if you contract the influenza within the period mentioned in the advertisement ." Now, is there not a request there? It comes to this: "In consideration of your buying my smoke ball, and then using it as I prescribe, I promise that if you catch the influenza within a certain time I will pay you 100l ." It must not be forgotten that this advertisement states that as security for what is being offered, and as proof of the sincerity of the offer, 1000l. is actually lodged at the bank where with to satisfy any possible demands which might be made in the event of the conditions contained therein being fulfilled and a person catching the epidemic so as to entitle him to the 100l . How can it be said that such a statement as that embodied only a mere expression of confidence in the wares which the defendants had to sell? I cannot read the advertisement in any such way . In my judgment, the advertisement was an offer intended to be acted upon, and when accepted and the conditions performed constituted a binding promise on which an action would lie, assuming there was consideration for that promise . The defendants have contended that it was a promise in honour or an agreement or a contract in honour--whatever that may mean . I understand that if there is no consideration for a promise, it may be a promise in honour, or, as we should call it, a promise without consideration and nudum pactum; but if anything else is meant, I do not understand it . I do not understand what a bargain or a promise or an agreement in honour is unless it is one on which an action cannot be brought because it is nudum pactum, and about nudum pactum I will say a word in a moment . </P> <P> In my judgment, therefore, this first point fails, and this was an offer intended to be acted upon, and, when acted upon and the conditions performed, constituted a promise to pay . </P> <P> In the next place, it was said that the promise was too wide, because there is no limit of time within which the person has to catch the epidemic . There are three possible limits of time to this contract . The first is, catching the epidemic during its continuance; the second is, catching the influenza during the time you are using the ball; the third is, catching the influenza within a reasonable time after the expiration of the two weeks during which you have used the ball three times daily . It is not necessary to say which is the correct construction of this contract, for no question arises thereon . Whichever is the true construction, there is sufficient limit of time so as not to make the contract too vague on that account . </P> <P> Then it was argued, that if the advertisement constituted an offer which might culminate in a contract if it was accepted, and its conditions performed, yet it was not accepted by the plaintiff in the manner contemplated, and that the offer contemplated was such that notice of the acceptance had to be given by the party using the carbolic ball to the defendants before user, so that the defendants might be at liberty to superintend the experiment . All I can say is, that there is no such clause in the advertisement, and that, in my judgment, no such clause can be read into it; and I entirely agree with what has fallen from my Brothers, that this is one of those cases in which a performance of the condition by using these smoke balls for two weeks three times a day is an acceptance of the offer . </P> <P> It was then said there was no person named in the advertisement with whom any contract was made . That, I suppose, has taken place in every case in which actions on advertisements have been maintained, from the time of Williams v Carwardine, and before that, down to the present day . I have nothing to add to what has been said on that subject, except that a person becomes a persona designata and able to sue, when he performs the conditions mentioned in the advertisement . </P> <P> Lastly, it was said that there was no consideration, and that it was nudum pactum . There are two considerations here . One is the consideration of the inconvenience of having to use this carbolic smoke ball for two weeks three times a day; and the other more important consideration is the money gain likely to accrue to the defendants by the enhanced sale of the smoke balls, by reason of the plaintiff's user of them . There is ample consideration to support this promise . I have only to add that as regards the policy and the wagering points, in my judgment, there is nothing in either of them . </P> </Td> <Td>" </Td> </Tr>

Carlill v carbolic smoke ball facts and decision