Abstract

This article examines the doctrine of puffery in Britain, in the first decades of its development during the nineteenth- and early twentieth centuries. The doctrine is a curious legal construct. Usually invoked as a defense argument, it identifies inert speech that does not give rise to legal liability, across fields of law. The analysis has two goals. First, given the scant literature on puffery, it simply covers a gap with a brief account based on primary sources, which link legal developments with the rise of mass advertising. The second and main goal is to propose an interpretation of the doctrine as a legal mode of ridicule. While traditionally viewed as an instance of caveat emptor that supported trade, the doctrine also involved a legal inferiorization of advertisements as the paradigmatic case of the sales pitch. In effect, language intended to promote a sale was construed by the doctrine as futile, and therefore also as legally meaningless. The analysis demonstrates the work of ridicule in cases from the most notorious area of advertising in this period, which also provided us with leading decisions on puffery, namely, quack medicines. In the process, it provides a new reading of Carlill v. The Carbolic Smoke Ball Company (1892) and other cases. In conclusion, the article ponders the unusual phenomenon of a doctrine embodying explicit ridicule. Its emergence arguably reflected a legal refusal to acknowledge the power of advertising, and particularly its appeals to consumers’ imagination rather than reason, even as advertising was given legal license.

About the Speaker

Dr. Anat Rosenberg completed her LL.B. magna cum laude at the Hebrew University, and her PhD in 2011 at the Tel Aviv University direct doctoral course. Since 2017 she has been a visiting scholar at the Faculty of History, the University of Cambridge, and the Institute of Advanced Legal Studies, the University of London. She has been a research fellow at the Sacher Institute for Legislative Research and Comparative Law, 2010-11, and a visiting fellow at Columbia University 2006-07.
Dr. Rosenberg’s research uses methodologies of cultural legal history, law and the humanities, and law and literature. She is currently writing a book on the cultural legal history of advertising in Britain in the first era of mass consumption, c. 1840-1914.