private law – contract ii unit 7. bowen lj begins his judgment by stating the defendants’...

Private Law – Contract IIPrivate Law – Contract IIUnit 7Unit 7

Bowen LJ begins his judgment by stating the Bowen LJ begins his judgment by stating the defendants’ arguments. How do you think defendants’ arguments. How do you think

the judgment will continue?the judgment will continue? It seems to me that in order to arrive at a It seems to me that in order to arrive at a

right conclusion we must read this right conclusion we must read this advertisment in its plain meaning, as the advertisment in its plain meaning, as the public would understand it. It was intended public would understand it. It was intended to be issued to the public and to be read to be issued to the public and to be read by the public. How would an ordinary by the public. How would an ordinary person reading this document construe it?person reading this document construe it?

How will Bown L.J. continue? Will he How will Bown L.J. continue? Will he construe the words of the advertisment construe the words of the advertisment

now?now? It was intended unquestionably to have some effect, and I It was intended unquestionably to have some effect, and I

think the effect which it was intended to have, was to make think the effect which it was intended to have, was to make people use the smoke ball, because the suggestions and people use the smoke ball, because the suggestions and allegations which it contains are directed immediately to allegations which it contains are directed immediately to the use of the smake ball as distinct from the purchase of the use of the smake ball as distinct from the purchase of it. It did not folow that the smoke ball was to be purchased it. It did not folow that the smoke ball was to be purchased from the defendants directly, or even from agents of theirs from the defendants directly, or even from agents of theirs directly. The intention was that the circulation of the smoke directly. The intention was that the circulation of the smoke ball should be promoted, and that the use of it should be ball should be promoted, and that the use of it should be increased. The advertisement begins by saying that a increased. The advertisement begins by saying that a reward will be paid by the Carbolic Smoke Ball Co. to any reward will be paid by the Carbolic Smoke Ball Co. to any person who contracts the increasing epidemic after using person who contracts the increasing epidemic after using the ball. the ball.

Will he construe the words of the Will he construe the words of the advertisment now?advertisment now?

No, he describes the effect the No, he describes the effect the advertisement was intended to have.advertisement was intended to have.

Will he (a) examine this point in detail? or 2) Will he (a) examine this point in detail? or 2) continue to describe the rest of the continue to describe the rest of the

advertisment?advertisment? It has been said that the words do not It has been said that the words do not

apply only to persons who contract the apply only to persons who contract the epidemic after the publication of the epidemic after the publication of the advertisement, but include persons who advertisement, but include persons who had previously contracted the influenza. I had previously contracted the influenza. I cannot so read the advertisement. It is cannot so read the advertisement. It is written in colloquial and popular language, written in colloquial and popular language, and I think that it is equivalent to this:and I think that it is equivalent to this:

Will he 1) examine this point in detail? Or 2) Will he 1) examine this point in detail? Or 2) continue to describe the rest of the continue to describe the rest of the

advertismentadvertisment Answer: 1Answer: 1

Will he explain the meaning of Will he explain the meaning of the words in the advertisement?the words in the advertisement? ““100£. will be paid to any person who shall contract the 100£. will be paid to any person who shall contract the

increasing epidemic after having used the carbolic increasing epidemic after having used the carbolic smoke ball three times daily for two weeks.” And it smoke ball three times daily for two weeks.” And it seems to me that the way in which the public would read seems to me that the way in which the public would read it would be this: that if anybody, after the advertisement it would be this: that if anybody, after the advertisement was published, used three times daily for two weeks the was published, used three times daily for two weeks the carbolic smoke ball, and then caught cold, he would be carbolic smoke ball, and then caught cold, he would be entitled to the reward. Then again it was said: “How long entitled to the reward. Then again it was said: “How long is this protection to endure? Is it to go on for ever, or for is this protection to endure? Is it to go on for ever, or for what limit of time?”what limit of time?”

Will he explain the meaning of Will he explain the meaning of the words in the advertisement?the words in the advertisement? YesYes

What will he do next?What will he do next?

I think that there are two constructions of I think that there are two constructions of this document, each of which is good this document, each of which is good sense, and each of which seems to me to sense, and each of which seems to me to satisfy the exigencies of the present satisfy the exigencies of the present action. It may mean that the protection is action. It may mean that the protection is warranted to last during the epidemic, and warranted to last during the epidemic, and it was during the epidemic that the plaintiff it was during the epidemic that the plaintiff contracted the disease.contracted the disease.

What will he do next?What will he do next?

He answers the question about the time He answers the question about the time limit, saying that there are two possible limit, saying that there are two possible constructions.constructions.

How will the text continue?How will the text continue?

I think, more probably, it means that the smoke ball will be a I think, more probably, it means that the smoke ball will be a protection while it is in use. That seems to me the way in which an protection while it is in use. That seems to me the way in which an ordinary person would understand an advertisement about ordinary person would understand an advertisement about medicine, and about a specific against influenza. It could not be medicine, and about a specific against influenza. It could not be supposed that after you have left off using it you are still to be supposed that after you have left off using it you are still to be protected for ever, as if there was to be a stamp set upon your protected for ever, as if there was to be a stamp set upon your forehead that you were never to catch influenza because you had forehead that you were never to catch influenza because you had once used the carbolic smoke ball. I think the immunity is to last once used the carbolic smoke ball. I think the immunity is to last during the use of the ball. That is the way in which I should naturally during the use of the ball. That is the way in which I should naturally read it, and it seems to me that the subsequent language of the read it, and it seems to me that the subsequent language of the advertisement supports that construction. (…)advertisement supports that construction. (…)

Was it intended that the 100£ should, if the conditions were fulfilled, Was it intended that the 100£ should, if the conditions were fulfilled, be paid?be paid?


He examines the second possible He examines the second possible construction of the document regarding construction of the document regarding the time limit.the time limit.

What method will he use to What method will he use to answer the question?answer the question?

The advertisment says that 1000£ is lodged at the bank The advertisment says that 1000£ is lodged at the bank for the purpose. Therefore, it cannot be said that the for the purpose. Therefore, it cannot be said that the statement that 100£ would be paid was intended to be a statement that 100£ would be paid was intended to be a mere puff. I think it was intended to be understood by the mere puff. I think it was intended to be understood by the public as an offer which was to be acted upon.public as an offer which was to be acted upon.

But it was said there was no check on the part of the But it was said there was no check on the part of the persons who issued the advertisement, and that it would persons who issued the advertisement, and that it would be an insensate thing to promise 100£ to a person who be an insensate thing to promise 100£ to a person who used the smoke ball unless you could check or used the smoke ball unless you could check or superintend his manner of using it.superintend his manner of using it.

What method will he use to What method will he use to answer the question?answer the question?

He examines the words of the He examines the words of the advertisement to answer the question. He advertisement to answer the question. He thinks it was intended to be a serious offer. thinks it was intended to be a serious offer.


The answer to that argument seems to me to be that if a The answer to that argument seems to me to be that if a person chooses to make extravagant promises of this person chooses to make extravagant promises of this kind he probably does so because it pays him to make kind he probably does so because it pays him to make them, and, if he has made them, the extravagance of the them, and, if he has made them, the extravagance of the promises is no reason in law why he should not be promises is no reason in law why he should not be bound by them.bound by them.

It was also said that the contract is made with all the It was also said that the contract is made with all the world – that is, with everybody; and that you cannot world – that is, with everybody; and that you cannot contract with everybody. It is not a contract made with all contract with everybody. It is not a contract made with all the world. There is the fallacy of the argument.the world. There is the fallacy of the argument.


He answers the defendants’ argument, He answers the defendants’ argument, then goes on to a new point.then goes on to a new point.

Will he explain why it is not a Will he explain why it is not a contract made with all the world?contract made with all the world?

It is an offer made to all the world; and why should not an offer be It is an offer made to all the world; and why should not an offer be made to all the world which is to ripen into a contract with anybody made to all the world which is to ripen into a contract with anybody who comes forward and performs the condition? It is an offer to who comes forward and performs the condition? It is an offer to become liable to anyone who, before it is retracted, performs the become liable to anyone who, before it is retracted, performs the condition, and although the offer is made to the world, the contract condition, and although the offer is made to the world, the contract is made with that limited portion of the public who come forward and is made with that limited portion of the public who come forward and perform the condition on the faith of the advertisement.perform the condition on the faith of the advertisement.

(…) Then as to the alleged want of consideration. The definition of (…) Then as to the alleged want of consideration. The definition of ‘consideration’ given in Selwyn’s Nisi Prius, 8the ed. p. 47, which is ‘consideration’ given in Selwyn’s Nisi Prius, 8the ed. p. 47, which is cited and adopted by Tindal, C. J., in the case of Laythoarp v. cited and adopted by Tindal, C. J., in the case of Laythoarp v. Bryant, is this:Bryant, is this:

Will he explain why it is not a contract Will he explain why it is not a contract made with all the world?made with all the world?

YesYes


““Any act of the plaintiff from which the Any act of the plaintiff from which the defendant derives a benefit or advantage, defendant derives a benefit or advantage, or any labour, detriment, or inconvenience or any labour, detriment, or inconvenience sustained by the plaintiff, provided such sustained by the plaintiff, provided such act is performed or such inconvenience act is performed or such inconvenience suffered by the plaintiff, with the consent, suffered by the plaintiff, with the consent, either express or implied, of the either express or implied, of the defendant.”defendant.”


He gives the definition of consideration He gives the definition of consideration from the work of authority cited.from the work of authority cited.

Will he apply these principles to Will he apply these principles to the present case?the present case?

Can it be said here that if the person who reads this advertisement Can it be said here that if the person who reads this advertisement applied thrice daily, for such time as may seem to him tolerable, the applied thrice daily, for such time as may seem to him tolerable, the carbolic smoke ball to his nostrils for a whole fortnight, he is doing carbolic smoke ball to his nostrils for a whole fortnight, he is doing nothing at all - that it is a mere act which is not to count towards nothing at all - that it is a mere act which is not to count towards consideration to support a promise (for the law does not require us consideration to support a promise (for the law does not require us to measure the adequacy of the consideration). Inconvenience to measure the adequacy of the consideration). Inconvenience sustained by one party at the request of the other is enough to sustained by one party at the request of the other is enough to create a consideration. I think, therefore, that it is consideration create a consideration. I think, therefore, that it is consideration ejnough that the defendants received a benefit from this user, for ejnough that the defendants received a benefit from this user, for the use of the smoke ball was contemplated by the defendants as the use of the smoke ball was contemplated by the defendants as being indirectly a benefit to them, because the use of the smoke being indirectly a benefit to them, because the use of the smoke balls would promote their sale.balls would promote their sale.

A.L. Smith, L-.J. delivered judgment to the same effect.A.L. Smith, L-.J. delivered judgment to the same effect.

Will he apply these principles to Will he apply these principles to the present case?the present case?

YesYes

True or false?True or false?

1. In this section, Bowen LJ answers the 1. In this section, Bowen LJ answers the defendants’ argumentsdefendants’ arguments

2. He agrees with most of the defendants’ 2. He agrees with most of the defendants’ argumentsarguments

3. He construes the words of the 3. He construes the words of the advertisement in detail one section at a advertisement in detail one section at a time.time.

4. He does not give the words of the 4. He does not give the words of the advertisement any special legal meaning.advertisement any special legal meaning.


5. The words of the advertisement are 5. The words of the advertisement are intended to make people buy the smoke intended to make people buy the smoke ball.ball.

6. It refers to anyone who catches flu 6. It refers to anyone who catches flu before or after the advertisement was before or after the advertisement was published.published.

7. The smoke ball should be used 7. The smoke ball should be used regularly for three weeksregularly for three weeks


8. In Bowen LJ’s opinion the smoke ball 8. In Bowen LJ’s opinion the smoke ball should give protection during the period of should give protection during the period of useuse

9. The offer of a reward was valid because 9. The offer of a reward was valid because the company deposited the company deposited ££1000 at the bank 1000 at the bank to prove their sincerity.to prove their sincerity.

What is the meaning of the What is the meaning of the following words:following words:

Warranted (line 29)Warranted (line 29) Fulfilled (42)Fulfilled (42) Insensate (49)Insensate (49) Extravagant (53)Extravagant (53) Liable (61)Liable (61)

KeyKey

Warrant = guaranteeWarrant = guarantee Fulfill= carry out, meet (conditions)Fulfill= carry out, meet (conditions) Insensate = sillyInsensate = silly Extravagant = wildExtravagant = wild Liable = bindingLiable = binding

Complete this phrase with information from lines Complete this phrase with information from lines 48-51, substituting a phrase with if for unless:48-51, substituting a phrase with if for unless:

It would be an insensate thing to promise It would be an insensate thing to promise 100£ to a person who used the smoke ball 100£ to a person who used the smoke ball if…’if…’

What is the meaning of the What is the meaning of the following words?following words?

It pays him (lines 53-4)It pays him (lines 53-4) Fallacy (58)Fallacy (58) To ripen into (60)To ripen into (60) Retracted (62)Retracted (62) Benefit (68, 81, 82)Benefit (68, 81, 82) Detriment (69)Detriment (69) Nostrils (75)Nostrils (75)

MeaningMeaning

Fallacy= fault in an argument, wrong Fallacy= fault in an argument, wrong argumentargument

Ripen into = become, change intoRipen into = become, change into Retracted = taken backRetracted = taken back Benefit = something that helps a person, a Benefit = something that helps a person, a

good thinggood thing Detriment = harm, damage, lossDetriment = harm, damage, loss Nostrils= the two passages of the noseNostrils= the two passages of the nose

Complete the sentences below by choosing Complete the sentences below by choosing the following: the following: fallacy, fulfilled. retracted, fallacy, fulfilled. retracted,

benefit, detriment, warrantedbenefit, detriment, warranted She offered to pay $300 for the painting, She offered to pay $300 for the painting,

but___her offer when she learnt that it was but___her offer when she learnt that it was not an original.not an original.

The vendor___the high quality of the The vendor___the high quality of the materialmaterial

The idea that the law is always just is a The idea that the law is always just is a ___. Even a good law may sometimes ___. Even a good law may sometimes cause injustice in individual cases.cause injustice in individual cases.

Complete the sentences below by choosing Complete the sentences below by choosing the following: the following: fallacy, fulfilled, retracted, fallacy, fulfilled, retracted,

benefit, detriment, warrantedbenefit, detriment, warranted In her will the testator created a trust for In her will the testator created a trust for

the ___of the poor.the ___of the poor. A contract comes to an end when both A contract comes to an end when both

parties have____all their obligations.parties have____all their obligations. Bad working conditions at Smith’s Ltd Bad working conditions at Smith’s Ltd

were a serious____to the were a serious____to the employers’health. In fact, in 1979 a group employers’health. In fact, in 1979 a group of workers who fell ill sued their employers of workers who fell ill sued their employers for damages.for damages.

Answer these questions:Answer these questions:

1. Can an extravagant or ridiculous 1. Can an extravagant or ridiculous promise be legally binding?promise be legally binding?

Why did the company make this Why did the company make this extravagant promise?extravagant promise?

A contract cannot be made with the whole A contract cannot be made with the whole world. Why does this not apply in this world. Why does this not apply in this case?case?

When can an offer to the world become a When can an offer to the world become a contract?contract?

Answer these questions:Answer these questions:

Who does an offer to the world create legal Who does an offer to the world create legal relations with?relations with?

To create a contract, must the offeree always To create a contract, must the offeree always state that s/he accepts the offer?state that s/he accepts the offer?

What happens if the condition is fulfilled after the What happens if the condition is fulfilled after the offeror has retracted the offer?offeror has retracted the offer?

What is consideration?What is consideration? What was the ‘double consideration’ in this What was the ‘double consideration’ in this

case?case? Was the decision in Carlill unanimous?Was the decision in Carlill unanimous?

ExerciseExercise

Go back to Section One, Exercise D3 on Go back to Section One, Exercise D3 on p. 122 and complete the table showing the p. 122 and complete the table showing the arguments for the defence and the arguments for the defence and the decision by filling in each point in your decision by filling in each point in your notebooknotebook

Arguments for the defenceArguments for the defenceBowen LJ’s ruling?Bowen LJ’s ruling?

1. Only an offer, not a contract1. Only an offer, not a contract 2. Not definite, no time limit2. Not definite, no time limit 3. Vague regarding persons involved3. Vague regarding persons involved 4. Vague – offer to the world in general4. Vague – offer to the world in general 5. Not definite – no way of checking the 5. Not definite – no way of checking the

experimentexperiment 6. Not a serious promise6. Not a serious promise 7. No contract intended because advertisement 7. No contract intended because advertisement

too vaguetoo vague

Bowen LJ’s rulingBowen LJ’s ruling

1. It is only an offer, which becomes a 1. It is only an offer, which becomes a contract on acceptancecontract on acceptance

2. The smoke ball gives protection while in 2. The smoke ball gives protection while in useuse

3. It applies to persons who used the 3. It applies to persons who used the smoke ball after the advertisement was smoke ball after the advertisement was publishedpublished

Bowen LJ’s ruling?Bowen LJ’s ruling?

4. It is possible to make an offer to the 4. It is possible to make an offer to the world in general, which becomes a world in general, which becomes a contract with individuals who accept the contract with individuals who accept the offer by performig the condition specified.offer by performig the condition specified.

5. The promise may be extravagant, but 5. The promise may be extravagant, but this is no reason in law why it should not this is no reason in law why it should not be bindingbe binding

Bowen LJ’s rulingBowen LJ’s ruling

6. The fact that 1000 £ was deposited at 6. The fact that 1000 £ was deposited at the bank shows that it was a serious offer.the bank shows that it was a serious offer.

7. Bowen LJ construes the advertisement 7. Bowen LJ construes the advertisement as ordinary people would read it and as ordinary people would read it and according to what is reasonable. He uses according to what is reasonable. He uses the words of the advertisement to decide the words of the advertisement to decide what the defendants intended, so that the what the defendants intended, so that the terms of the offer become clear.terms of the offer become clear.

ConclusionConclusion

Refer to Part B of your completed table on Refer to Part B of your completed table on p. 122. Which rulings apply only to the p. 122. Which rulings apply only to the specific facts of Carlill v. Carbolic Smoke specific facts of Carlill v. Carbolic Smoke Ball Co., and which rulings contain general Ball Co., and which rulings contain general legal pirnciples?legal pirnciples?

Specific facts of CarlillSpecific facts of Carlill

11. It is only an offer, which becomes a contract . It is only an offer, which becomes a contract on acceptanceon acceptance

2. The smoke ball gives protection while in use2. The smoke ball gives protection while in use 3. It applies to persons who used the smoke ball 3. It applies to persons who used the smoke ball

after the advertisement was publishedafter the advertisement was published 6. The fact that 1000 £ was deposited at the 6. The fact that 1000 £ was deposited at the

bank shows that it was a serious offer.bank shows that it was a serious offer.

General legal prionciples: Ratio General legal prionciples: Ratio decidendidecidendi

1. It is possible to make an offer to the 1. It is possible to make an offer to the world in general which becomes a contract world in general which becomes a contract with individuals who accept the offerwith individuals who accept the offer

2. It is possible to accept an offer by the 2. It is possible to accept an offer by the act of performing the conditions specified act of performing the conditions specified in it if the offer is in the form of a promise in it if the offer is in the form of a promise in return for an actin return for an act

Obiter dicta?Obiter dicta?

If a person chooses to make extravagant If a person chooses to make extravagant promises, the extravagance of the promises, the extravagance of the promises is no reason in law why he promises is no reason in law why he should not be bound by themshould not be bound by them

The law does not require us to measure The law does not require us to measure the adequacy of considerationthe adequacy of consideration

Inconvenience sustained by one party at Inconvenience sustained by one party at request of the other is enough to create a request of the other is enough to create a considerationconsideration

Which courts are bound by the Which courts are bound by the decision in Carlill?decision in Carlill?

The Court of AppealThe Court of Appeal High CourtHigh Court All courts of first instanceAll courts of first instance

How can the binding principles of How can the binding principles of CarlillCarlill be changed? be changed?

The principle can be overruled only by the The principle can be overruled only by the Supreme Court or changed by an Act of Supreme Court or changed by an Act of ParliamentParliament

Which sources of law does Bowen Which sources of law does Bowen LJ use to reach his decision?LJ use to reach his decision?

case law (Laythoarp v. Bryant)case law (Laythoarp v. Bryant) A work of authority cited in that case A work of authority cited in that case

(Selwyn’s (Selwyn’s Nisi PriusNisi Prius))

Complete the following extract by choosing: Complete the following extract by choosing: contractscontracts,contracting, ,contracting, obligation,obligation, party party

We have seen that most contracts are We have seen that most contracts are agreements. It should now be noted that it is by agreements. It should now be noted that it is by no means true to say that all agreements no means true to say that all agreements are___. Many agreements fall outside the scope are___. Many agreements fall outside the scope of the law of contract, either because they of the law of contract, either because they concern matters of moral, rather than of legal, concern matters of moral, rather than of legal, ____or because the ____parties agree that they ____or because the ____parties agree that they are not to be treated as enforceable contracts, are not to be treated as enforceable contracts, or they are not intended to be such.or they are not intended to be such.

Complete the following extract by choosing: Complete the following extract by choosing: casecase, , courtscourts, , jurisdictionjurisdiction, ,

A familiar example is the___of a person A familiar example is the___of a person who drives a friend somewhere in return who drives a friend somewhere in return for payment of the petrol. The___have, for payment of the petrol. The___have, moreover, repeatedly declined jurisdiction moreover, repeatedly declined jurisdiction over agreements which are expressed in a over agreements which are expressed in a way which shows an intention to exclude way which shows an intention to exclude their____.their____.

Complete the following extract by choosing: Complete the following extract by choosing: bindingbinding, , intentionintention non-contractual,non-contractual,

On the other hand, what appears on the On the other hand, what appears on the face of it to be a business transaction will face of it to be a business transaction will not lighlty be treated as a merely moral not lighlty be treated as a merely moral obligation, and it should be noted that obligation, and it should be noted that expressed____may sometimes have the expressed____may sometimes have the efect of turning into a___contract – an efect of turning into a___contract – an agreement which might otherwise have agreement which might otherwise have been regarded as____.been regarded as____.

Complete the following extract by choosing: Complete the following extract by choosing: defendantsdefendants, , reward,reward, influenza,influenza,

A famous example of the latter situation A famous example of the latter situation was provided by Carlill v. Carbolic Smoke was provided by Carlill v. Carbolic Smoke Ball Co.The___manufactured “carbolic Ball Co.The___manufactured “carbolic smoke balls” which they advertised as smoke balls” which they advertised as miraculous cures for___. The miraculous cures for___. The advertisement stated that L100___would advertisement stated that L100___would be paid to anyone who contracted be paid to anyone who contracted influenza after having used the ball as influenza after having used the ball as prescribed.prescribed.

Complete the following extract by choosing:Complete the following extract by choosing: Company’s, Company’s, plaintiff, suedplaintiff, sued

It was further stated that L1,000 was It was further stated that L1,000 was deposited with a bank to show the deposited with a bank to show the sincerity of the ____intention. The___, Mrs sincerity of the ____intention. The___, Mrs Carlill, used one of these balls, but Carlill, used one of these balls, but nevertheless contracted influenza; nevertheless contracted influenza; she___for the promised rewardshe___for the promised reward

Complete the following extract by choosing: Complete the following extract by choosing: accepted,accepted, It It was held,was held, legal relations,legal relations, offer,offer, plaintiff,plaintiff, recoverrecover

. ___that she was entitled to___: normally . ___that she was entitled to___: normally such advertisements are mere “puffs” such advertisements are mere “puffs” which are not intended to create___, but in which are not intended to create___, but in this instance taking into account, amongst this instance taking into account, amongst other circumstances, the reference to other circumstances, the reference to the____at the bank, the court___that the the____at the bank, the court___that the Company had intentionally made a Company had intentionally made a binding__which the plaintiff had______.binding__which the plaintiff had______.

Later comments of the caseLater comments of the case

""The amusing circumstances of the case should not The amusing circumstances of the case should not obscure the surprising extent to which the court was obscure the surprising extent to which the court was prepared to conceive social relations in terms of prepared to conceive social relations in terms of contracts. The parties to the alleged contract had never contracts. The parties to the alleged contract had never met or communicated with each other directly. Nor had met or communicated with each other directly. Nor had they exchanged goods, money or services between they exchanged goods, money or services between themselves. The law of contract is used by the court as themselves. The law of contract is used by the court as an instrument for discouraging misleading and an instrument for discouraging misleading and extravagant claims in advertising and for deterring the extravagant claims in advertising and for deterring the marketing of unproven, and perhaps dangerous marketing of unproven, and perhaps dangerous pharmaceuticals... pharmaceuticals...

Later comments Later comments

The judges run through a shopping-list of The judges run through a shopping-list of questions: Was there a promise? Was the questions: Was there a promise? Was the promise serious and intended to be acted promise serious and intended to be acted upon? Was the promise sufficiently upon? Was the promise sufficiently definite and certain? Was the promise definite and certain? Was the promise accepted by the plaintiff? Did the plaintiff accepted by the plaintiff? Did the plaintiff perform some action in exchange for the perform some action in exchange for the promise?... promise?...

Later commentsLater comments

The generality and abstraction of the rules permit both The generality and abstraction of the rules permit both the extensive utilization of [contract law] and its the extensive utilization of [contract law] and its application to the case, without any discussion of such application to the case, without any discussion of such matters as the moral claims of the parties, the nature of matters as the moral claims of the parties, the nature of the market for pharmaceuticals and the problems the market for pharmaceuticals and the problems generated by misleading advertising... Its doctrinal generated by misleading advertising... Its doctrinal integrity helps to achieve legitimacy, because the law integrity helps to achieve legitimacy, because the law can be presented as objective and neutral, not a matter can be presented as objective and neutral, not a matter of politics or preference, but a settled body of rules and of politics or preference, but a settled body of rules and principles, legitimated by tradition and routine principles, legitimated by tradition and routine observance, and applied impartially and fairly to all observance, and applied impartially and fairly to all citizenscitizens (Prof. Hugh Collins, LSE) (Prof. Hugh Collins, LSE)

A mootA moot

For each case, appoint three people to act For each case, appoint three people to act as counsel for the plaintiff and two people as counsel for the plaintiff and two people as counsel for the defendant. The other as counsel for the defendant. The other memers of the class will act as judges.memers of the class will act as judges.

Prepare your roles carefully. Revise some Prepare your roles carefully. Revise some of the expressions you learnt in Section of the expressions you learnt in Section One, Exercise E2 if you are acting as One, Exercise E2 if you are acting as counsel and in Section One, Exercise D 4 counsel and in Section One, Exercise D 4 if you are the judge.if you are the judge.

A mootA moot

Counsel for the plaintiff/defendant: (‘In my Counsel for the plaintiff/defendant: (‘In my submission… In my respectful submission… In my respectful submission…It is submitted that…’)submission…It is submitted that…’)

Judge: ‘The defendants contend that…It Judge: ‘The defendants contend that…It was urged also…was urged also…

A mootA moot

Hold the moot, at which first the plaintiff, Hold the moot, at which first the plaintiff, then the defendant are represented in turn then the defendant are represented in turn in court. Deliver judgment, and decide who in court. Deliver judgment, and decide who has won the case.has won the case.

Issue a short written judgment beginning Issue a short written judgment beginning like this:like this:

‘‘It was held that the plaintiff was/was not It was held that the plaintiff was/was not entitled to recover on the grounds that…entitled to recover on the grounds that…

A mootA moot

X advertises in the local paper that she will X advertises in the local paper that she will pay a £100 reward to anyone who finds pay a £100 reward to anyone who finds and returns her lost Persian cat, Miaow. Y and returns her lost Persian cat, Miaow. Y finds Miaow two months later and takes finds Miaow two months later and takes her back to X, asking for the reward- ; her back to X, asking for the reward- ; meanwhile, X has bought another cat to meanwhile, X has bought another cat to replace Miaow. She agrees to take her replace Miaow. She agrees to take her back, but refuses to pay the reward. Y back, but refuses to pay the reward. Y sues her for the £100 reward.sues her for the £100 reward.

A mootA moot

The Superhair Company produces an expensive new The Superhair Company produces an expensive new product ‘guaranteed to make your hair grow in only 3 product ‘guaranteed to make your hair grow in only 3 weks or your money back’. The advertisement specifies weks or your money back’. The advertisement specifies that users must follow the instructions on the packet that users must follow the instructions on the packet carefully. Z, who is completely bald (he has no hair at all) carefully. Z, who is completely bald (he has no hair at all) sees the advertisement and buys the product. He uses it sees the advertisement and buys the product. He uses it as instructed on the packet, but his hair does not begin as instructed on the packet, but his hair does not begin to grow again. When Superhair refuse to give Z his to grow again. When Superhair refuse to give Z his money back, he sues them.money back, he sues them.

Case ACase A

For the plaintiff: The advertisement was a For the plaintiff: The advertisement was a definite offer. It was an offer to the public in definite offer. It was an offer to the public in general which the plaintiff accepted by fulfilling general which the plaintiff accepted by fulfilling the conditions specified (Carlill v. Carbolic the conditions specified (Carlill v. Carbolic Smoke Ball Co.) – finding and returning the Smoke Ball Co.) – finding and returning the defendant’s cat. In consideration for the promise defendant’s cat. In consideration for the promise of L100 the plaintiff suffered the inconvenience of L100 the plaintiff suffered the inconvenience of finding and returning Miaow. The offer was of finding and returning Miaow. The offer was not revoked and remained valid for a reasonable not revoked and remained valid for a reasonable period of time.period of time.

Case ACase A

For the defendant: The advertisement was For the defendant: The advertisement was not a contract. It was an offer to the world not a contract. It was an offer to the world in general, not to a particular person. It in general, not to a particular person. It was not a definite offer, it was vague was not a definite offer, it was vague regarding the time limit. There was no regarding the time limit. There was no consideration for the promise to pay L100. consideration for the promise to pay L100. In any case, Y did not accept the offer.In any case, Y did not accept the offer.

Case ACase A

Judgment: for the plaintiff (adopting the Judgment: for the plaintiff (adopting the arguments for the plaintiff). It was held that arguments for the plaintiff). It was held that the plaintiff was entitled to recover the the plaintiff was entitled to recover the L100 reward on the grounds that by her L100 reward on the grounds that by her act of finding and returning the defendant’s act of finding and returning the defendant’s cat she had performed the conditions cat she had performed the conditions specified in the offer, thus accepting the specified in the offer, thus accepting the offer and creating a legally binding offer and creating a legally binding contract with the defendant.contract with the defendant.

Case BCase B

For the plaintiff: The defendant company intended the For the plaintiff: The defendant company intended the advertisement to be read as a serious offer, which would encourage advertisement to be read as a serious offer, which would encourage people to use the new product, so promoting their sales. People people to use the new product, so promoting their sales. People reading the offer would understand that it was serious because the reading the offer would understand that it was serious because the product was expensive and the advertisement specified that users product was expensive and the advertisement specified that users must follow the instructions on the packet carefully. The plaintiff must follow the instructions on the packet carefully. The plaintiff bought the product on the basis of the advertisement. By his act of bought the product on the basis of the advertisement. By his act of buying and using the product as instructed he fulfilled the conditions buying and using the product as instructed he fulfilled the conditions specified in the offer, thus creating a contract with the defendant specified in the offer, thus creating a contract with the defendant company (Carlill v. Carbolic Smoke Ball Co.). There was double company (Carlill v. Carbolic Smoke Ball Co.). There was double consideration since there was a benefit to the offeror in the consideration since there was a benefit to the offeror in the promotion of their sales and a detriment to the offeree in the promotion of their sales and a detriment to the offeree in the inconvenience of using the product.inconvenience of using the product.

Case BCase B

For the defendant: The advertisement was only an extravagant For the defendant: The advertisement was only an extravagant promise, it was not a serious offer intended to form the basis of a promise, it was not a serious offer intended to form the basis of a legally binding contract and memberrs of the public who read it legally binding contract and memberrs of the public who read it would not construe it that way. The case must be distinguished from would not construe it that way. The case must be distinguished from Carlill since in Carlill the defendant comjpany stated that they had Carlill since in Carlill the defendant comjpany stated that they had deposited money with the bank for the purpose of paying the reward deposited money with the bank for the purpose of paying the reward and it was this fact which showed the sincerity of their intention to and it was this fact which showed the sincerity of their intention to contract. It was vague – there was no way of checking the contract. It was vague – there was no way of checking the experiment. It was an offer to the world in general, not to a particular experiment. It was an offer to the world in general, not to a particular person. There was no consideration for the promise.person. There was no consideration for the promise.

Case BCase B

Judgment: for the defendants. It was held that the plaintiff was not Judgment: for the defendants. It was held that the plaintiff was not entitled to recover the cost of the product on the grounds that the entitled to recover the cost of the product on the grounds that the advertisement was not a serious offer intended to form the basis of advertisement was not a serious offer intended to form the basis of a legally binding agreement. The case must be distinguished from a legally binding agreement. The case must be distinguished from Carlill on the grounds submitted by counsel for the defendants. Carlill on the grounds submitted by counsel for the defendants. Normally advertisements of this kind are not intended to create legal Normally advertisements of this kind are not intended to create legal relations and there is nothing in the facts of the present case to relations and there is nothing in the facts of the present case to show that the offer was so intended.show that the offer was so intended.

private law – contract ii unit 7. bowen lj begins his judgment by stating the defendants’...

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