Carlill v Carbolic Smoke Ball Co Ltd

Running head: LAW AND PRECEDENT
Law and Precedent
Name of the Student
Name of the University
Authors Note

LAW AND PRECEDENT1
ANSWER- 1
Introduction
As the principle of precedent is considered to be an indispensable component of the
English legal system, therefore it is undoubtedly important to know in which way it generally
operates. Usually, it has been observed that there are some cases in which the previous decisions
are compulsorily followed inside the hierarchy of English courts construction but in some cases
these decision are not followed. The basis on which the doctrine of precedent is operated termed
as Stare Decisis. It is a Latin term the denotation of which stands under the preceding judgment
(Partington 2019). This paper would be arguing that the English legal system has been affected
adversely by the doctrine of precedent to a great extent. While discussing the same it also sheds
light on different kinds of precedent, its impact on the judges.
Discussion
Doctrine of precedent is referred to the legitimate verdicts given by the respected judges
of the higher courts are continued as a precedent. Therefore, the general idea under the English
legal system states that in future the verdicts given by lower or equivalent courts needs to follow
the previous verdicts given by the higher court of law. The theory of precedent is claimed to
provide the English courts with certainty. In every case, the decisions are made or judgments are
given upon the opinions of the judges (Bankowski, MacCormick and Marshall 2016). Two forms
of states must be given by this decision or judgment, namely, the Ratio decidendi and the Obiter
dicta.
The meaning of the term ratio decidendi is the reason for the decision. This term factually
means the key objects which influences the judge to come to a specific conclusion. The decision

LAW AND PRECEDENT2
would be governed by the rule of law and, in any case, the general statement does not include
specific details. The precedent is set for the potential decision to be made. Donoghue vs.
Stevenson [1932] UKHL 100 is considered to be the landmark case under the ratio decidendi. A
signature court ruling in Scottish Delinquency and the English Tort Law had been made by the
House of Lords in this case. Here, a customer became ill after consuming poisoned ginger beer
that contained a dead snail and sued the maker of that beer. The ratio decidendi is that a person
has a duty of care to those who, they might fairly overlook, would be affected by his/her
activities (Steiner 2015). The ratio decidendi of Donoghue vs. Stevenson case consequently
brought foremost change to the law of negligence. On the other hand, the phrases outside the
ratio decidendi are referred to as the Obiter dicta. The Obiter dicta, as it says, does not reflect the
principal rationale of the decision, so it is no longer necessary on future decisions. Though not a
portion of the precedent, in the future it is possible to refer to certain Obiter dicta in order to
make a particular interpretation of the law more convincing. Carlill v Carbolic Smoke Ball Co
Ltd [1892] EWCA Civ 1 is a landmark case decided by the Court of Appeal in the English
contract law which was of the view that an advertisement with a number of terms for obtaining a
reward was a contractual mutual offer available to all who met its terms. It is noteworthy that the
law was created creatively by the influential judges.
The case of Carlill v Carbolic Smoke Ball Co Ltd is often discussed as an initial case
under the law of contract. Three dissimilar kinds of precedent usually exists. The original
precedent is the main and new precedent to be set, as the judge is not to determine before that
time. It suggests that in similar future situations there will be an innovative set of proportions to
be observed. The judge should usually give the reason by analogy, since there was no previous
ruling to observe. However, judges should seek advice in the nearest cases (Young 2016). As an