Private Law - ContractPrivate Law - ContractUnit 7Unit 7

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1.Introduction: Law of contract: revision1.Introduction: Law of contract: revision 1.1. Private law: legal terms1.1. Private law: legal terms 3. Carlill v. Carbolic Smoke Ball Co 3. Carlill v. Carbolic Smoke Ball Co 3.1. First reading: understanding the contents and 3.1. First reading: understanding the contents and

organisation of the textorganisation of the text 3.2. Reading for detail and language study: 3.2. Reading for detail and language study: 3.2.1. The facts of the case3.2.1. The facts of the case 3.2.2. The defence3.2.2. The defence 3.2.3. Understanding complex sentences3.2.3. Understanding complex sentences 3.2.4. Role play3.2.4. Role play 3.2.5. People in private law: word formation3.2.5. People in private law: word formation

AssignmentAssignment

Write a list of legal terms related to civil Write a list of legal terms related to civil lawlaw

Match each word to the correctMatch each word to the correct definition: definition: Plaintiff, to Plaintiff, to be entitled, to dismiss an appeal,case of first instance, be entitled, to dismiss an appeal,case of first instance,

damages, to holddamages, to hold

The first hearing of a case, not an appealThe first hearing of a case, not an appeal Money given as legal compensationMoney given as legal compensation To reject, or not accept an appealTo reject, or not accept an appeal A person who brings an action in civil lawA person who brings an action in civil law To have a right to somethingTo have a right to something To decide in legal proceedingsTo decide in legal proceedings

Match each word to the correctMatch each word to the correct definition: definition: defendant, to defendant, to hold, to be entitled, to dismiss an appeal, to sue, case of hold, to be entitled, to dismiss an appeal, to sue, case of

first instance, to deliver judgement, damagesfirst instance, to deliver judgement, damages

A person who defends a civil or criminal A person who defends a civil or criminal actionaction

To take legal action against someone in a To take legal action against someone in a civil casecivil case

To give a judicial decisionTo give a judicial decision

Carlill v. Carbolic Smoke Ball Co.Carlill v. Carbolic Smoke Ball Co.[[18931893]] 1 Q.B. 256 1 Q.B. 256

V. = VersusV. = Versus Co. = CompanyCo. = Company 1 = volume 11 = volume 1 Q.B. = the Queen’s Bench law reportsQ.B. = the Queen’s Bench law reports 256 = page 256256 = page 256

Carlill vs. Carbolic Smoke Ball Co.Carlill vs. Carbolic Smoke Ball Co.

Carlill vs. Carbolic Smoke Ball Co.Carlill vs. Carbolic Smoke Ball Co.

Divide the text into the following Divide the text into the following sections:sections:

1) legal principles decided in the case1) legal principles decided in the case 2) the facts of the case2) the facts of the case 3) decision in the case of first instance3) decision in the case of first instance 4) first judge’s decision in the appeal4) first judge’s decision in the appeal 5) second judge’s decision and judgment 5) second judge’s decision and judgment

in the appeal: arguments for the defendantin the appeal: arguments for the defendant

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.

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:

Section (2)?

“100l. 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. 1000l. Is deposited with the Alliance Bank, Regent Street, shewing our sincerity in the matter.

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.”

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.

Section (3)?

Hawins, J., held that she was entitled to recover the 100l. The defendants appealed.

Section (4)?

Lindley, L.J. delivered judgment dismissing the appeal.

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.

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 ofer 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.

Definite offerDefinite offer

To be considered definite, an offer (and a To be considered definite, an offer (and a contract) generally must contain the contract) generally must contain the following terms: (1) identification of the following terms: (1) identification of the parties, (2) identification of the subject parties, (2) identification of the subject matter and quantity, (3) consideration to matter and quantity, (3) consideration to be paid, and (4) time of performancebe paid, and (4) time of performance

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.

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.

The development of the text

Why do you think the case starts by stating the legal principles decided in the case?

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

Scan the text to find the following:Scan the text to find the following:

Who was the plaintiff in the case of first Who was the plaintiff in the case of first instance?instance?

Who were the defendants?Who were the defendants? Who won the case of first instance?Who won the case of first instance? Who appealed against the decision?Who appealed against the decision?

Find the meaning of the following Find the meaning of the following words using context clues:words using context clues:

1000 1000 ££. is DEPOSITED with the Alliance . is DEPOSITED with the Alliance BankBank

Many thousand smoke balls were sold as Many thousand smoke balls were sold as PREVENTIVES against this disease and PREVENTIVES against this disease and in no case was the disease contractedin no case was the disease contracted

Hawkins J. Held that she (the plaintiff) was Hawkins J. Held that she (the plaintiff) was entitled to RECOVER the 100 entitled to RECOVER the 100 ££ The The defendants appealed.defendants appealed.

DefinitionsDefinitions

To deposit =To deposit = to put a sum of money in a bank accountto put a sum of money in a bank account Preventives = Preventives = things that stop a person from catching a things that stop a person from catching a

diseasedisease Recover =Recover = to get money from someone as the result to get money from someone as the result

of a favourable judgment in a lawsuitof a favourable judgment in a lawsuit

Answer the following questions:Answer the following questions:

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

Answer the following questions:Answer the following questions:

Why did the plaintiff buy the product?Why did the plaintiff buy the product? Did she follow the instructions?Did she follow the instructions? Did it work in her case?Did it work in her case? Why do you suppose the company made Why do you suppose the company made

this offer?this offer? In your opinion, does it look like a serious In your opinion, does it look like a serious

offer? Give reasons.offer? Give reasons.

Facts of the caseFacts of the case

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

Which summary of the facts Which summary of the facts corresponds to the text?corresponds to the text?

1) She later sued the company for 1) She later sued the company for damages because she caught flu.damages because she caught flu.

2) She later sued the company for the 2) She later sued the company for the 100l. reward they had advertised because 100l. reward they had advertised because she caught flu.she caught flu.

3) She later sued the company because 3) She later sued the company because she caught flu, and then appealed against she caught flu, and then appealed against the decision of the court of first instance.the decision of the court of first instance.

Describe the facts of the case:Describe the facts of the case:

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

Was the advertisment a contract?

No, it was an offer

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?

Example sentence

It was urged also

Function?

that, if you look at this document Preliminary condition

Function?

you will find much vagueness asserting

Function?

as to the persons with whom the contract was intended to be made

specifying

Function?

that, in the first place, its terms are wide enough

asserting

Function?

to include persons who may have used the smoke ball before the advertisement was issued;

specifying

Function?

at all events, that it is an offer to the world in general

asserting

Function

And, also, that it is unreasonable to suppose it to be a definite offer,

asserting

Function?

Because nobody in their senses would contract themselves out of the opportunity

explaining

Function?

of checking the experiment which was going to be made at their own expense

specifying

The sentence contains 4 main assertions. What are they?

The defendants contend that: 1) the document is very vague (regarding

the persons involved) 2) its terms are wide enough (to include

persons who may have used the smoke ball before the advertisement was issued)

3) it is an offer to the world in general 4) it is not a definite offer

Divide the sentence into short, Divide the sentence into short, logical phraseslogical phrases

The Defendants contend next, that it is an The Defendants contend next, that it is an offer the terms of which are too vague to offer the terms of which are too vague to be treated as a definite offer, inasmuch as be treated as a definite offer, inasmuch as there is no limit of time fixed for the there is no limit of time fixed for the catching of the influenza, and it cannot be catching of the influenza, and it cannot be supposed that the advertisers seriously supposed that the advertisers seriously meant to promise to pay money to every meant to promise to pay money to every person who catches the influenza at any person who catches the influenza at any time after the inhaling of the smoke ball.time after the inhaling of the smoke ball.

Function: reporting/specifying/explaining/

asserting? The defendants contend next, reporting

Function: reporting/specifying/explaining/

asserting? that it is an offer asserting

Function: reporting/specifying/explaining/

asserting? the terms of which are too vague to be

treated as a definite offer, specifying

Function: reporting/specifying/explaining/

asserting? inasmuch as there is no limit of time fixed

for the catching of the influenza reason - explaining

Function: reporting/specifying/explaining/

asserting? and it cannot be supposed that the

advertisers seriusly meant asserting

Function: reporting/specifying/explaining/

asserting? to promise to pay money specifying

Function: reporting/specifying/explaining/

asserting? to every person specifying

Function: reporting/specifying/explaining/

asserting? Who catches the influenza at any time

after the inhaling of the smoke ball. specifying

Identify the main assertions:

The defendants contend that: 1) it is an offer (the terms of which are too

vague) 2) the advertisers did not mean to promise

to pay money (to every person who catches the influenza at any time after inhaling the smoke ball)

The defendants contend that:The defendants contend that:

1. the terms are very wide1. the terms are very wide 2. It is an offer to the world in general2. It is an offer to the world in general 3. it is not a definite offer (because there is 3. it is not a definite offer (because there is

no way of checking the experiment)no way of checking the experiment) 4. the terms are too vague4. the terms are too vague

State the defentants’ arguments briefly in your own words

It is not a definite offer, because there is no time It is not a definite offer, because there is no time limit. It is too vague regarding the persons limit. It is too vague regarding the persons involved.It is an offer to the world in general. It is involved.It is an offer to the world in general. It is not a definite offer because there is no chance not a definite offer because there is no chance of checking the experiment. It is not a serious of checking the experiment. It is not a serious promise intended to form the basis of a contract. promise intended to form the basis of a contract. No contract is intended because the No contract is intended because the advertisment is too vague.advertisment is too vague.

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.

Oral practice: the defendants Oral practice: the defendants contend that:contend that:

The offer is not definite because the terms The offer is not definite because the terms are too vague (because no time limit is are too vague (because no time limit is fixed) and therefore it is not possible that fixed) and therefore it is not possible that the company seriously intended to pay the the company seriously intended to pay the reward (to anyone who caught flu at any reward (to anyone who caught flu at any time after using the smoke ball).time after using the smoke ball).

Role play: introduction

Would there be a valid contract under your legal system in these circumstances?

Would the defendants be able to present similar arguments?

What arguments would the plaintiff present?

Role play

Form groups of three. Each choose one of the following roles:

THE JUDGE COUNSEL FOR THE DEFENDANT COUNSEL FOR THE PLAINTIFF

Role play

1. JUDGE: present facts of the case 2. COUNSEL FOR THE PLAINTIFF: Present

your case. (Introduce your arguments with: ‘In my submission, the advertisment…’, ‘In my respectful submission…’’It is submitted that…’

3. COUNCIL FOR THE DEFENDANT: present your case (as in 2. above)

4. JUDGE: coment on counsel’s submissions.

Role play

Do you think the judges in Carlill will reach the same conclusions as you?

Compare your decision with other groups in the class. Do you all agree?

Client, injured party, offerorClient, injured party, offeror, , executor, trustee, vendor, executor, trustee, vendor, beneficiary, plaintiff, landlord, employee, solicitor, beneficiary, plaintiff, landlord, employee, solicitor, defendant, testator, offeree, purchaser, employer, defendant, testator, offeree, purchaser, employer,

tortfeasor, tenanttortfeasor, tenant LEGAL ADVICE: A ____is a lawyer who gives legal LEGAL ADVICE: A ____is a lawyer who gives legal

advice to his or her ____and may sometimes represent advice to his or her ____and may sometimes represent them in court.them in court.

WILL: The ____is the person appointed to ‘execute’ the WILL: The ____is the person appointed to ‘execute’ the will, that is to give effect to the wishes expressed in the will, that is to give effect to the wishes expressed in the will by the___will by the___

TORT: The____is a person who commits a civil wrong, TORT: The____is a person who commits a civil wrong, called a tort, which causes damage or injury to the called a tort, which causes damage or injury to the __________

Client, injured party, offerorClient, injured party, offeror, , executor, trustee, vendor, executor, trustee, vendor, beneficiary, plaintiff, landlord, employee, solicitor, beneficiary, plaintiff, landlord, employee, solicitor, defendant, testator, offeree, purchaser, employer, defendant, testator, offeree, purchaser, employer,

tortfeasor, tenanttortfeasor, tenant SALE: The___sells an article or product to SALE: The___sells an article or product to

the buyer, or ____, who buys, or the buyer, or ____, who buys, or ‘purchases’ it.‘purchases’ it.

TRUST: A____is the legal owner of TRUST: A____is the legal owner of property which s/he holds in trust for the property which s/he holds in trust for the benefit of the ____. Under rules of Equity, benefit of the ____. Under rules of Equity, the ____must act in the interests of the ____must act in the interests of the____, according to the terms of the the____, according to the terms of the trust.trust.

Client, injured party, offerorClient, injured party, offeror, , executor, trustee, vendor, executor, trustee, vendor, beneficiary, plaintiff, landlord, employee, solicitor, beneficiary, plaintiff, landlord, employee, solicitor, defendant, testator, offeree, purchaser, employer, defendant, testator, offeree, purchaser, employer,

tortfeasor, tenanttortfeasor, tenant CONTRACT: In English law a contract is formed when CONTRACT: In English law a contract is formed when

the____accepts the offer which the____has made.the____accepts the offer which the____has made. EMPLOYMENT: A contract of employment creates a EMPLOYMENT: A contract of employment creates a

special legal relationship in which the two parties have special legal relationship in which the two parties have certain rights and duties. For example, the___has the certain rights and duties. For example, the___has the duty to make sure that the ____’s place of work is safe.duty to make sure that the ____’s place of work is safe.

LEASE OF LAND: The____is the person who owns land LEASE OF LAND: The____is the person who owns land which the____uses (e.g. As a dwelling or place of work), which the____uses (e.g. As a dwelling or place of work), and for which s/he pays a sum of money called rent.and for which s/he pays a sum of money called rent.