Court of Appeal
1 Q.B. 256 (1893)
Facts
The plaintiff bought a product based upon an advertisement she saw in a paper and the ad promised that a specific performance of use of said product would bring a result and if said product did not yield stated result, vendor would reward lack of performance on their part with $100.
Procedural History
Trial court judge issued holding for Plaintiff. Defendant appeals here.
Issue
Does the advertisement constitute an enforceable unilateral offer, or is the ad intended to be a “mere puff?”
Arguments for Both Parties
The defendant argues that the advertisement is too vague to be enforced, and furthermore, that a reasonable person would have considered the advertisement to be mere puffery. The defendant states that the alleged offer is not made to anyone in particular and thus unenforceable. The defendant states that the Plaintiff did not notify the defendant of her acceptance of the offer.
Plaintiff states that she purchased the smoke ball on the faith of the advertisement.
Holding
The court affirms for the Plaintiff stating that there was a unilateral offer by the defendant in the advertisement and the Plaintiff is entitled to the Defendants’ promise of $100 should their product not work.
Justices differ on their opinions of the time frame in which the reward is valid. Most seem to agree that it is valid while the individual is using the smoke balls, the real difference in opinion is regarding the valid time length after usage has stopped, though the most satisfactory answer I read included a length of time that would be suitable in business terms.
Reasoning behind Holding
There are several reasons the court holds for the Plaintiff, the first being that the advertisement, advertises the Defendant’s sincerity of offer by stating that they have money squirreled away in a bank account specifically for the use of remedying those who are failed by the Defendant’s product. Also to this end, the advertisement lays out very specific terms as to how an offeree can perform the necessary considerations to accept the offer, 3 times a day, for two weeks.
The next reason it is that the offer can be proved to be accepted by performing those specific actions, based upon the specificity of the advertisement’s elements. In terms of accepting the offer, the offeree need not contact the offeror, the offeree accepts the offer by performance of the elements, that “the notification of acceptance need not precede the performance.”
Rule
In unilateral offers, acceptance occurs with specific performance of the elements of the offer.
Do we have an enforceable offer?
- Yes, the offer is unilateral and sincere
Do we have an enforceable acceptance?
- Does the user still have to be using it when they become sick?
- Who controls the method of the acceptance?
- The offeror because they create the offer and the terms in which it can be accepted.
- Acceptance by performance can be a sticky issue
Spencer M. Durden 