Private Law - Contract

1. Private Law - Contract Unit 7

2. Preview 1.Introduction: Law of contract: revision 1.1. Private law: legal terms 3. Carlill v. Carbolic Smoke Ball Co 3.1. First reading: understanding the contents and organisation of the text 3.2. Reading for detail and language study: 3.2.1. The facts of the case 3.2.2. The defence 3.2.3. Understanding complex sentences 3.2.4. Role play 3.2.5. People in private law: word formation

3. Assignment 1 1. Write a list oflegaltermsrelated to civil law (about 10 wordsorphrases)

4. Assignment 2 2. Use yourknowledgeof word-formation to continueyour list: e.g. ifyouhavewrittenthenounappeal, youcouldaddtheverb to appeal, andtherelatednounappellant

5. Match each word to the correctdefinition: Plaintiff, to be entitled, to dismiss an appeal,case of first instance, damages, to hold • The first hearing of a case, not an appeal • Money given as legal compensation • To reject, or not accept an appeal • A person who brings an action in civil law • To have a right to something • To decide in legal proceedings

6. Match each word to the correctdefinition: defendant, to hold, to be entitled, to dismiss an appeal, to sue, case of first instance, to deliver judgement, damages • A person who defends a civil or criminal action • To take legal action against someone in a civil case • To give a judicial decision

7. Carlill v. Carbolic Smoke Ball Co.[1893] 1 Q.B. 256 • V. = Versus • Co. = Company • [1893]Lawreports for theyear 1893 • 1 = volume 1 • Q.B. = theQueen’sBenchlawreportsinwhichthecasewasreported, notthecourtinwhichitwasheard. Itwasheardinthe Court ofAppeal • 256 = page 256

8. Carlill v. Carbolic Smoke Ball Co.[1893] 1 Q.B. 256 Whatinformationdoesthe title ofthecasegiveyouwithoutlooking at thecase?

9. Carlill vs. Carbolic Smoke Ball Co.

10. Carlill vs. Carbolic Smoke Ball Co.

11. First reading: understandingthecontentsandorganisationofthetext Thefirstpartofthecase, whichisreproduced on p. 117-18, contains 5 mainelements: 1) legalprinciplesdecidedinthecase 2) factsofthecase 3) decisioninthecaseoffirst instance 4) firstjudge’sdecisionintheappeal 5) secondjudge’sdecisionandjudgmentintheappeal: arguments for thedefendant

12. Skimthetextanddivideitintothese 5 sections to see how thematerialisorganised • 1) legalprinciplesdecidedinthecase • 2) thefactsofthecase • 3) decisioninthecaseoffirst instance • 4) firstjudge’sdecisionintheappeal • 5) secondjudge’sdecisionandjudgmentintheappeal: arguments for thedefendant

13. Section (1)? • An offer, to be capable of acceptance, must involve a definite promise by the offeror that he will bind himself if the exact terms specified by him are accepted. • An offer may be made either to a particular person or to the public at large. • If an offer takes the form of a promise in return for an act, the performance of that act is in itself an adequate indication of assent.

14. Section (2)? • APPEAL from a decision of Hawkins, J. • The defendants, who were proprietors and vendors of a medical preparation called “The Carbolic Smoke Ball,” inserted in the Pall Mall Gazette of November 13, 1891, and in other newspapers, the following advertisement:

15. Section (2)? • “100 £ reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. 1000 £ is deposited with the Alliance Bank, Regent Street, shewing our sincerity in the matter.

16. Section (2)? • During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball. One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s. post free. The ball can be refilled at a cost of 5s. Address, Carbolic Smoke Ball Company, 27, Princes Street, Hanover Square, London.”

17. Section (2)? • The plaintiff, a lady, on the faith of this advertisement, bought one of the balls at a chemist’s, and used it as directed, three times a day, from November 20, 1891, to January 17, 1892, when she was attacked by influenza.

18. Section (3)? • Hawkins, J., held that she was entitled to recover the 100£. The defendants appealed.

19. Section (4)? • Lindley, L.J. delivered judgment dismissing the appeal.

20. Section (5)? • Bowen, L.J. I am of the same opinion. We were asked to say that this document was a contract too vague to be enforced.

21. Section (5)? • The first observation which arises is that the document itself is not a contract at all, it is only an offer made to the public. The defendants contend next, that it is an offer the terms of which are too vague to be treated as a definite offer, inasmuch as there is no limit of time fixed for the catching of the influenza, and it cannot be supposed that the advertisers seriously meant to promise to pay money to every person who catches the influenza at any time after the inhaling of the smoke ball.

22. Section (5)? • It was urged also, that if you look at this document you will find much vagueness as to the persons with whom the contract was intended to be made – that, in the first place, its terms are wide enough to include persons who may have used the smoke ball before the advertisement was issued; at all events, that it is an offer to the world in general, and, also, that it is unreasonable to supose it to be a definite offer, because nobody in their senses would contract themselves out of the opportunity of checking the experiment which was going to be made at their own expense.

23. Section (5)? • It is also contended that the advertisement is rather in the nature of a puff or a proclamation than a promise or offer intended to mature into a contract when accepted. But the main point seems to me that the vagueness of the document shews that no contract whatever was intended.

24. The development of the text • Why do you think the case starts by stating the legal principles decided in the case?

25. Scan the text to find 4 abbreviations. What do they mean? • J • Justice • £ • pound • s. • shilling • LJ • Lord Justice

26. Scan the text to find the following: • Who was the plaintiff in the case of first instance? • Who were the defendants? • Who won the case of first instance? • Who appealed against the decision?

27. Findthemeaningofthefollowingwordsusingcontextclues (wordsorphrasesthathelpyouunderstandunknownwords): • 1000 £. is DEPOSITED withtheAlliance Bank • Manythousand smoke ballsweresold as PREVENTIVES againstthisdiseaseandin no casewasthediseasecontracted • Hawkins J. heldthatshe (theplaintiff) wasentitled to RECOVER the 100 £Thedefendantsappealed.

28. Definitions • To deposit = • to put a sum of money in a bank account • Preventives = • things that stop a person from catching a disease • Recover = • to get money from someone as the result of a favourable judgment in a lawsuit

29. Answer the following questions: • What did the Carbolic Smoke Ball Co. sell? • What were they for? • According to the company, did they work? • Were they expensive? • Who did the Company offer to pay 100£ to? • Why did they deposit 1000£ with the bank?

30. Answer the following questions: • Why did the plaintiff buy the product? • Did she follow the instructions? • Did it work in her case? • Why do you suppose the company made this offer? • In your opinion, does it look like a serious offer? Give reasons.

31. Facts of the case • As a preventive against flu the plaintiff bought a carbolic smoke ball from the defendant company because she had read their advertisement. She used it according to the instructions.

32. Which summary of the facts corresponds to the text? • 1) Shelatersuedthecompany for damagesbecauseshecaughtflu. • 2) Shelatersuedthecompany for the 100 £ rewardthey had advertisedbecauseshecaughtflu. • 3) Shelatersuedthecompanybecauseshecaughtflu, andthenappealedagainstthedecisionofthecourtoffirst instance.

33. Describe the facts of the case: • “The defendants, the Carbolic Smoke Ball Company, sold a product called carbolic smoke balls, which they advertised as a very good preventive against flu. In their advertisement the Company offered to pay...”

34. Was the advertisment a contract? • No, it was an offer

35. Understanding complex sentences • 1. Divide the sentence into short phrases • 2. Study each phrase: (1) for content – what information does it give? (2) for function – what is the relation to the rest of the sentence • 3. Think about the global meaning of the sentence: (1) what are the main points? (2) what other information is important?

36. Divide the sentence into short, logical phrases • TheDefendantscontendnext, thatitisanofferthetermsofwhich are toovague to betreated as a definiteoffer, inasmuch as thereis no limit of time fixed for thecatchingoftheinfluenza, anditcannotbesupposedthattheadvertisersseriouslymeant to promise to paymoney to everypersonwhocatchestheinfluenza at any time aftertheinhalingofthe smoke ball.

37. Function: reporting/specifying/explaining/asserting? • The defendants contend next, • reporting

38. Function: reporting/specifying/explaining/asserting? • that it is an offer • asserting

39. Function: reporting/specifying/explaining/asserting? • the terms of which are too vague to be treated as a definite offer, • specifying

40. Function: reporting/specifying/explaining/asserting? • inasmuch as there is no limit of time fixed for the catching of the influenza • reason - explaining

41. Function: reporting/specifying/explaining/asserting? • and it cannot be supposed that the advertisers seriusly meant • asserting

42. Function: reporting/specifying/explaining/asserting? • to promise to pay money • specifying

43. Function: reporting/specifying/explaining/asserting? • to every person • specifying

44. Function: reporting/specifying/explaining/asserting? • Who catches the influenza at any time after the inhaling of the smoke ball. • specifying

45. What are thedefendants’ mainassertions? 1. Not a definiteoffer; toovague; no time limit 2. No intention to paymoney to everypersonwhocatchestheinfluenza 3. Anoffer to theworldin general 4. Not a definiteoffer

46. What are the defendants’ basic arguments? • It is too vague to be a definite offer (no time limit, etc.) • It is an offer to the general public, not a particular person. • It is not a serious offer.

47. Dividethe sentence into short phrases Itwasurgedalso, thatifyoulook at thisdocumentyouwillfindmuchvagueness as to thepersonswithwhomthecontractwasintended to bemade – that, inthefirst place, itsterms are wide enough to includepersonswhomayhaveusedthe smoke ballbeforetheadvertisementwasissued; at allevents, thatitisanoffer to theworldin general, and, also, thatitisunreasonable to supposeit to be a definiteoffer, becausenobodyintheirsenseswouldcontractthemselvesoutoftheopportunityofcheckingtheexperimentwhichwasgoing to bemade at theirownexpense.

48. Example sentence • It was urged also

49. Function? • that, if you look at this document • Preliminary condition

50. Function: asserting, specifying, explaining, reporting • you will find much vagueness • asserting