Offer vs. Invitation To Treat

The lawyers among you will read today’s blog title and feel like you’re back in class.  “Offer vs. invitation to treat” is to law school what “RNA vs. DNA” is for medical scholars.

A client of mine, to whom I believe I was bemoaning a real estate practice that I don’t like, told me to read up on the part of contract law known as invitation to treat.

When a seller lists a property for $999,000, and turns down an offer for $1,100,000, is there an issue from a contract law standpoint?

Maybe, maybe not.  And the answer could be rooted in case law from the 1840’s…


“Statement of price is not an offer.  It is an invitation to treat.”


Well how does that apply to our crazy real estate market?

Of all the stories I’ve ever told on my blog, and all the practices in the real estate industry that I’ve called out, one that I was most surprised to see readers disagree with pertains to sellers who refuse offers above their advertised list price.

I wrote about this in the summer of 2017; I believe there was a seller who listed at $999,900, with no offer date, and was telling people he wanted $1.3M.

I took issue with this, because I considered it false advertising.

I believe that if you’re listed at $999,900 with an “offer date” scheduled, then you’re essentially signalling that your list price represents a starting price, and you have a hidden reserve price.

A lot of my readers said they don’t care whether there’s a set offer date or not, and that a seller should be free to set prices and accept or decline offers as he or she sees fit.

I was surprised, to say the least.  The feedback that I’ve solicited from participants of this market suggests that “pricing games” is near the top of everybody’s pet peeves.

A few weeks ago, a property was listed on the east side for $999,900, and there was no offer date.

You all know where this is going, right?  Same story, again and again.  But it just goes to show you – we haven’t really obtained any clarity on this subject.

My clients and I viewed the house, and loved it.  Who wouldn’t?  It was probably worth over $1.1M.

We made an offer for $999,900, and submitted it to the listing agent.

The agent, as luck would have it, admitted she is a regular reader of my blog.  And when she told me that the seller wouldn’t entertain any offers near the list price, she said, “I’ve read about this topic on your blog before, so I already know how you feel.”

She was quite pleasant, and so I politely asked her, “If you’re listed at $999,900 with no offer date, and you have no intention of accepting the list price, isn’t this blatant false advertising?”

She didn’t seem to want to say yes or no, so she just said, “I’m doing what my seller wants me to do!  It’s his idea!”

We increased our bid to $1,050,000, but the seller didn’t accept.

Now we’re in a situation where I think there’s a case to be made for false advertising, since the listing remained on the market for $999,900 for weeks.

The list price says $999,900, but there’s no chance of the seller accepting an offer at that price.  How this isn’t false advertising, I don’t know.

I went on showings with another client that evening, who happened to be a lawyer.  And he too disagreed with me!

“The list price isn’t an offer; it’s an invitiation to treat,” he told me.

And before I go any further here, one note needs to be made.  In the real estate world, we use the word “offer” incorrectly, every single day.  When we say “offer” we really mean “bid.”  In contract law, the “offer” would refer to the property for sale, which is being offered for sale.  The listing is an offering.

In any event, my client further explained that the list price of the property doesn’t represent a true “offer” but merely an invitation to treat, as contract law goes.

Contract case law suggests that an advertisement, or an advertised list price, doesn’t constitute a true offer.

And this reminds me of my third-year university “Business Law” class, in which the professor would always use the same example:

“I’ll buy your textbook for ten dollars.”

Is that a true offer?  Or is he merely making a statement?

Is he saying:

a) I would buy your textbook for ten dollars, theoretically.  I would.  It’s something I’d do.
b) Here is ten dollars, which I would like to give to you in exchange for the textbook.

Such an elementary example provides context on the complications of the concept of an offer and acceptance.

There are a slew of legal websites out there that explain the difference between an “offer” and an “invitiation to treat,” but I like this summary the most:

“An invitation to treat is a mere declaration of willingness to enter into negotiations; is is not an offer, and cannot be accepted so as to form a binding contract.”

“An offer must be a clear, unequivocal and direct approach to another party to contract. For this reason, advertisements, catalogues or store flyers are not offers. Nor is a FOR SALE sign on a used car.

“The law calls these invitations to treat; essentially invitations to the general public to make an offer on a particular item. But, even here, there have been exceptions. For example, in a 1856 case, an advertisement of train rates was held to be a valid offer. Much depends on the wording of the invitation.”

“As a general rule, a display of goods at a fixed price in a shop window or on a shelf in a self-service store is an invitation to treat and not an offer. An offer may be made by a prospective buyer. At this stage, the retailer may accept or reject that offer.

“Similar principles would seem to apply where a supplier of goods or services indicates their availability on a website: that is, the offer would seem to come from the customer (eg. when he clicks the appropriate button) and it is then open to the supplier to accept or reject that offer.”


Where things get complicated is with respect to the actual “offer,” when it’s made, how it’s made, and how it’s accepted.

I was told law schools teach “the Kodak case,” so I was able to find this summary online:

In December 2001 Kodak’s Web site offered a digital camera package for £100. It was advertised as a “special deal” and within days thousands of customers placed orders online and provided their credit card details for payment. They received an automated online confirmation that urged them to keep the message both as proof of purchase and for claiming under warranty.

Then Kodak discovered that the price of £100 was an error – the price should have been £329.

Kodak initially claimed that the orders for cameras had not been accepted so no contract was formed. It said the confirmatory e-mail was only sent to follow industry practice and was not an acceptance of an offer.

A contract is formed where there is an offer, an acceptance, consideration and an intention to create legal relations. An offer is distinguished from an “invitation to treat” because the latter lacks that intention to be legally bound.

Although Kodak’s Web site did not make it clear, the relevant pages were probably an invitation to treat. By filling out the order form and giving credit card information, the customer responded by making an offer to buy the package.

The difficulty for Kodak, however, was that the automated response suggested that the orders had been accepted. It not only acknowledged the order but also talked about “this contract”. Although the response was no doubt designed to enhance the user experience, it gave customers the impression that their orders had been accepted.

So to avoid difficulties it is essential to ensure that your Web site is structured to reflect the way you want to do business. If Kodak wants to be certain that an automated e-mail in response to an order does not amount to acceptance of the order, this should be made clear so that the customer is in no doubt about the position. The Web site should also specify when acceptance does occur. This will be necessary in any case to comply with the latest EU laws on e-commerce.

Kodak argued that the customers must have realised the £100 price tag was a mistake. The courts have long accepted that a contract is unenforceable where the offer does not express the true intention of the seller, if the purchaser must have realised that a mistake has occurred.

The Internet, however, is seen as a medium for great bargains so online customers might have difficulty distinguishing between a price error and a promotion. A product advertised online as a “special deal” during post-Christmas sales had obviously been taken seriously enough by Kodak’s customers.

An e-tailer looking to protect itself should set up systems to ensure that mistakes are picked up before product details and prices are loaded on to a live Web site.

Kodak may also have been accused of committing the offence of giving a misleading price indication. To defend this allegation Kodak would have had to show that it acted diligently and took all reasonable steps to avoid misleading the consumer.

In the event Kodak agreed to honour the orders, whether as a public relations consideration or after a reassessment of the legal position is not clear. However, it undoubtedly has proved an expensive experience for the company.


I think it’s fair to say that after reading the definition of “invitation to treat” as well as the Kodak case summary, we can conclude that the seller of a Toronto home is free to list the property at any price, regardless of whether or not there’s intent to accept that price.

The “why” isn’t my issue, however.

That seller can list his or her home at any price, because he or she isn’t making an offering, so there’s no fear of a buyer accepting to form a binding contract.

But what about the advertisement itself?

Let’s look at the Competition Act, for just a moment.

Directly from the Government of Canada website:

Section 52 of the Act is a criminal provision. It prohibits knowingly or recklessly making, or permitting the making of, a representation to the public, in any form whatever, that is false or misleading in a material respect. Under this provision, it is not necessary to demonstrate that any person was deceived or misled; that any member of the public to whom the representation was made was within Canada; or that the representation was made in a place to which the public had access. Subsection 52(4) directs that the general impression conveyed by a representation, as well as its literal meaning, be taken into account when determining whether or not the representation is false or misleading in a material respect.

Aren’t there two parts to the discussion here?

1) Can a buyer “accept” the offering the seller is making, when he or she lists a property at $999,900?
2) Can a seller make a representation on price that is knowingly false?

I accept that an offer and an invitiation to treat are two different things, and in that regard, there’s nothing wrong with under-pricing.

But as far as the Competition Act goes, I see a problem.

A sub-section of “False & Misleading Representations” provides us with this:

Section 74.05 of the Competition Act is a civil provision. It prohibits the sale or rent of a product at a price higher than its advertised price. The provision does not apply if the advertised price was a mistake and the error was immediately corrected.

Real estate is a very unique animal, I’ll give you that.

And the “product” is one-of-one.  We’re not talking about Winners selling jeans for $80 when they were advertised at $60.

We have one house for sale.

Is the conversation regarding false advertising different?

I’m interested to know what you all think…


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  1. Me says:

    There is no issue here to even bother debating. It’s an invitation to treat. Listing price means nothing. It’s been that way since time immemorial.

  2. lui says:

    Crash is not coming but a correction on 905 houses is very apparent.Condos in the 416 are hotter than Megan Fox in cut off jeans.

  3. Appraiser says:

    “About 1/3 of 416 condos have been selling for over asking. It’s been pretty consistently at 30-35% over the last 12 weeks.” While 39% of freeholds have been selling over asking during the same period.

    Scott Ingram, May 8, 2018.

    Yup, all the hallmarks of a real estate crash.

    1. Chris says:

      Now you’re quoting Scott Ingram? But didn’t you just say “There appears to be no shortage of bad ideas, this one is near the top of the list” regarding his musings?

      Not to mention, sell vs. list is a metric of very questionable usefulness. This entire blog post is on the topic of misleading list prices.

      Come on, appraiser…this is surprisingly weak, even from you.

      1. Appraiser says:

        These are not “musings” they are facts. In a cold market there are no bidding wars.

        1. Chris says:

          Oh, sorry, did Scott’s stats say “percentage sold in bidding wars”? Because last I checked, it said “percentage sold over asking”. These are not the same.

          As outlined in this blog post, if the ask is $1M, but the seller is holding out for $1.1M, we can get to “sold over asking” sans bidding war.

          I won’t even delve into “sold over asking” on the heels of relist+”new price”.

    2. RealGeorge says:

      So all of you out there who were calling for a crash in April 2018 are WRONG! I hope each of you is suitably chastened.

  4. Condodweller says:

    Wow! I am unable to post for a few days and look what happens; even a nice vacation post turns into a bull/bear tug-o-war! There was some good discussion though so it’s all good I suppose.

    WRT topic at hand, I agree that for anything to change the current system would need to be challenged in court. Whether the false advertising claim can be successful I don’t know but I suspect, given exorbitant legal fees, it might only make sense for a lawyer to attempt this and if there were any basis for it it would have been done by now.

    I don’t like the practice as most buyers wouldn’t but as long as there isn’t any material damage sustained by a buyer, other than wasted time and possibly missing out on a similar property I don’t expect anything is going to change. It’s up to the buyer to educate himself/herself either on their own or through their agent to navigate the minefield. As it has been pointed out it wouldn’t make much sense to regulate against circumstances which exist at extremes of the market.

    No regulatory body or government should interfere with how much a seller can ask for a property. In the past I thought perhaps a limit of a certain percentage might do the trick but now I don’t think it would be practical in a changing market.

  5. derek says:

    Thanks for your Atlantis review; very helpful!

    On the topic of pricing, how about this Old Mill Dr. (West T.O.) property:

    April 2018: List $2,400,000
    May 2018: List $1,900,000 (yes, that’s a $500k “list” price drop)

    So, pray tell, what are the sellers hoping to achieve!?!?

  6. Joel says:

    If people refused to offer on houses with stupid pricing games that would be the end of stupid pricing.

    1. noro says:

      Interesting argument. But it’s not the house’s fault that its seller is an idiot.

      A buyer who is able to detach reason from emotion can look at a house, and determine the maximum value they would pay. And if the bids go above, move on to the next property. I concede that “reason” is not abundant in the real estate world, but with sales data increasingly available through online sources it really gives us a boost that we didn’t have before.

  7. Negotiator says:

    There is an exception to s. 74.05 of the Competition Act for “the supply of a product by or on behalf of a person who is not engaged in the business of dealing in that product.”

    The supplier of the housing product on a resale transaction is the home owner. A typical owner would be exempted from this section. Interestingly it probably would capture housing developers because they are in the business of dealing with home sales.

    1. Appraiser says:

      I can see where the exception might apply to a private sale, but if a realtor is involved not so much.

      1. jeff316 says:

        The realtor isn’t the supplier, only the agent.

        1. Appraiser says:

          Not sure what distinguishes “realtor” from “agent.” In any case, the issue is false advertising.

          1. jeff316 says:

            The realtor isn’t supplying the thing for sale. Just facilitating the sale.

  8. Marina says:

    The only truly fair and open way to sell residential real estate is an outright auction.
    However, auctions don’t always result in the highest price, so sellers might not be happy. They might also result in a seller being forced to accept a price they don’t like.
    Also a buyer might not like having to wait for a specific time. Or complain that the auction format amps up their impulse buy instinct and had them pay more than they were planning.
    Point is, regardless of the system, there will always be people who are unhappy with it. I’m not thrilled with the whole idea of underpricing, but I’m also used to it.
    And let’s face it, regardless of the new system, people will find a million ways to get around it, exploit it, and otherwise engage in acts of d0uchery.
    Best option is to get yourself educated before venturing into the market.

    1. Carl says:

      There is at least one brokerage offering open auctions ( We’ll see how much business they will attract.

    2. Condodweller says:

      The more I think about it the more I think that the current system is better than an open auction. The main reason being that I would prefer to have some time to think it over and cool off a bit and perhaps discuss it with family and friends vs going along an emotion-fueled ride at auction where one is more likely to lose their cool and overbid on a property.

  9. Chroscklh says:

    The David,
    Good blog post. I is learning lot from this one. These things I know conceptually from the do the many real estate deal here but I just accept as way is done here – now I know a little as to why. And I agree with the David on moral of do this way. Say what you will about back home my country and our archaic law about having bear as pet (is no allowed in city or near school and other restrict) but we no allow this thing go on. You list place at money you want get, maybe you get money – maybe you get hand grenade through mail slot. Either way you accept what given and transaction is complete.

    1. Julia says:

      Welcome back!

    2. GinaTo says:

      We dearly missed you and your bear! 🙂

  10. Andrew says:

    David, don’t you think that all of this can be fixed by the introduction of a “reserve price” on the MLS system?

    Properties in Toronto are essentially auctioned without a formal auction. In most auctions, there is a reserve price that is higher than the list price, or “starting price”, so nobody is caught off guard.

    The problem in Toronto real estate is that sellers aren’t required to state whether or not they have a resverve.

    How about a simple checkbox on the MLS listing?
    Reserve: Y/N


    1. jeff316 says:

      That changes nothing in these situations.

    2. Ralph Cramdown says:

      ‘Fixed’? If organized real estate thought anything was broken, organized real estate would take it upon themselves to fix it. Here’s how the conversation goes:

      Agent: “We can do this to ways. We can list at a fair price, ten or twenty buyers will come for a look, and if we’re right about the value, we’ll get at least one offer we can work with. Or we can list it 10% low, one to two hundred people will tramp mud on your rugs and paw through your closets, and we’ll auction it off eight days later.”

      Seller: [Insert what you think the seller asks here]

      A: [Insert what you think the agent answers here]

      S: “OK, let’s list it 10% low!”

      Wasting the time of the people who show up and offer list price is a feature, not a bug. Buyers hate it, and agents say they commiserate, but when they get a listing, what do they do?

      Serg makes a good point, that the offer date, indicative of the pricing strategy, isn’t in a public field (but most serious buyers are working with agents anyway, goes the argument).

  11. Chris says:

    “On another thread, @Cleanhead suggested there be a rule that price can’t exceed 10% of list (with overage going to city for LTT or affordable housing). I think that’s worth exploring. I don’t think last spring would’ve got as carried away with that rule. If can’t go over 10% of list price how does agent price that $950K East York place? Do $899K where max out at $989K? Or go $949K and leave more upside? Either way you don’t waste time of people thinking might go in the 700s or 800s. I don’t see much downside for this “sold price capped at 10% above list price” rule proposal. I like that there’s still opportunity for someone to bully over that, but that none of it goes to the seller (and agent). What are the negatives? #ToRE”

    – Scott Ingram

    I guess off the top of my head, a quick workaround is to list at an exorbitantly high value, for example, to take Scott’s scenario, listing at $1.5M.

    But then again, that probably runs the risk of reducing interest from buyers actually looking to buy in the $900-$1M range, as they may ignore the listing at this price, and those looking in the $1.5M range may quickly dismiss the listing when they see that it is not on par with other houses listed (more realistically) at that price point.

    Either way, interesting idea.

    1. Negotiator says:

      What about when you inevitably get 4 of the same offer for list +10%?

      Also why would anyone bid over +10%? On a million dollar listing your bid of 1.1 would be just as competitive as a bid of 1.5, because the same amount is going to the seller regardless.

      This idea is half-baked.

      1. Chris says:

        Well yes, it’s obviously half-baked, it’s a twitter thread, not a policy paper. Perhaps the portion paid to LTT above 10% could be progressive, still incentivizing sellers to get top dollar, but dis-incentivizing misleading low list prices. But anyways the point was as a thought experiment, not a comprehensive list of ways to deal with every possible scenario.

        In your example, under the hypothetical list+10% rule, I would suggest that the real estate agent has failed at their job by listing at $1M, when they arguably should have known the home would feasibly fetch $1.5M. They should have listed it for a more realistic price of $1.5M.

        And that’s really what this entire topic is about. If they list the home at $1M, but they want $1.5M, and won’t sell for less than $1.5M, is it not somewhat dishonest to list for $1M? Why even have a list price if it is meaningless? Why not just say “House For Sale For Best Offer!”

      2. Appraiser says:

        There appears to be no shortage of bad ideas, this one is near the top of the list.

        1. Chris says:

          Thanks for contributing to the discussion, as always, appraiser. Your insights are oh so valuable.

          1. Appraiser says:


    2. Not Harold says:

      This a stupid rule for edge cases. Real estate is not always in a hyper bull market.

      Lots of areas in the GTA are seeing price cuts. These selling games fix themselves when a downcycle comes. Any law is going to be clumsy and we won’t see its effect for years. Laws on prices cause more trouble than they’re worth since people are ingenuous when faced with large incentives.

      1. Chris says:

        I agree, a downturn takes care of many of these problems.

        I just thought it was an interesting idea put forward by Scott Ingram, as a way to try and address some of the foolish games played when it comes to list prices. Certainly not a panacea, nor a completed policy ready for implementation, but an interesting discussion point at very least.

      2. jeff316 says:

        Exactly. That idea was just bad. Not thought out at all.

  12. Serg says:

    I think real estate practice of intentionally underpricing properties should be prohibited. Even if there is “offer date” on the listing , it’s still false advertisement because “offer date ” clauses are only visible to realtors and NOT visible on: public websites (realtor, zolo, etc), online/newspaper advertising.
    This practice created PANIC on the market and irrational buying. With so many stories around houses being sold few hundred thousands over asking, people got into FOMO and prices grew even further. In reality statement “house is sold overasking” is also big misadvertisement of current market situation, because this statement is “meaningless” without knowing original intended price.
    For example I do see some houses going “over asking” in Richmond Hill now, but does it mean anything? It does not unless you have access to price history and you see that just a few month ago the house was listed 500k higher and did not sell. Now it was listed 500k less, got sold 200k overasking and agent will put a sign that house was sold overasking in 7 days. Such a bullshit!
    This practice needs to stop!!!! Either introduce actions and clearly advertise that this is auction (and force seller to sell at highest bid so that they are more careful with starting price) OR stop this practice all together.
    We all want stable market and not speculative markets where somebody becomes rich overnight and somebody ruins their life financially!
    I truly believe that this “underpricing” false advertisement practice is partially responsible for bubble we are in! While it’s good short term for sellers, long term it can ruin our economy

    1. Jennifer says:


    2. JL says:


    3. jeff316 says:

      Should overpricing then be prohibited too?

      1. Serg says:

        No. No one shows up at property when it’s overpriced. So seller won’t do it

        1. Ralph Cramdown says:

          Sellers overprice all the time, on purpose. Look at these two places (actually three, as the first one is one of two unbuilt units…)

          Anchoring. Put that number in the customer’s head, and when he buys the place for 20% less he’ll think he got a deal. People are idiots. They can’t even go to the mall and physically handle a pair of pants — with no bidding war — and decide whether they’re worth the sticker price without being influenced by another number which should be completely irrelevant:

      2. JL says:

        No, but perhaps there should be a rule that “if offer=ask, with no conditions”, then seller has to accept the offer. This would prevent any seller from listing for less than they would be willing to accept.

        1. jeff316 says:

          Every sale has conditions. What constitutes “no conditions”? What happens if the buyers want possession within two weeks? This would just cause rampant over pricing. A draconian rule change for what end? To make unsophisticated buyers feel better?

          1. RealGeorge says:

            I tend to agree. What’s so essential about protecting unsophisticated/naive/uneducated/downright stupid (choose your own adjective) buyers? Why is this such a big issue (at least with some people)?

          2. Ralph Cramdown says:

            How does this affect only “unsophisticated” buyers? I assume you mean rubes who show up and think they can get the property for list price, bidding against eight others. But they drive up prices, just by being there and bidding, no matter how unsuccessfully. That’s why underlisting works. If they just cluttered things up without raising the prices other (more sophisticated?) buyers had to pay, sellers and listing agents would discourage rather than welcoming them (i.e. with more realistic prices).

            I won’t go so far as to say that I think under- and overlisting should be outlawed, but there is definitely a cost to this behaviour — that is why it is being done. There are winners (bank shareholders, the LTT, cash-out sellers and those on commission) and losers (all first time buyers, at the very least). The losers aren’t only the “unsophisticated” or “stupid” buyers, and, even if they were the only losers, I think it would be valid for each of us to question whether we think that is an acceptable outcome.

    4. bal says:

      Well Said..

  13. Appraiser says:

    Whether or not “under listing” a property constitutes false advertising is a matter of opinion at present. Unless and until someone acts upon such an assertion by filing a complaint with the Competition Bureau we may never know.

    1. ed says:

      I wonder what would happen if a potential buyer sued a seller in small claims court for false advertising.

      1. Appraiser says:

        To sue a person or business in small claims court, your lawsuit, called a claim, must fall into one of the two following categories:

        1. Claims for money owed under an agreement, such as unpaid accounts for goods or services sold and delivered, unpaid loans, unpaid rent, NSF (non-sufficient funds) cheques.

        2. Claims for damages, such as property damage, clothes damaged by a dry cleaner, personal injuries. breach of contract.

        If you want to sue for more than $25,000, you will have to take your case to the Superior Court of Justice (“civil court”).

        1. ed says:

          My thoughts were more along the line of a claim for damages.
          Lets say you have your home listed for $1 million.
          As a prospective purchaser I then hire an appraiser to appraise the property, I also contract for a home inspection to be completed and once I am satisfied with those items I have a lawyer draw up an offer to purchase for the asking price of $1 million.
          Is it possible that the prospective purchaser would have a claim for damages if the seller refused the offer and continued to list the home for that same $1 million asking price?

          1. Appraiser says:

            I believe our gracious host has covered the legality of the issues you raise in today’s post. In any event damages must be proven. I’m not a lawyer, but I would suggest the chances of doing so are remote.

  14. Ralph Cramdown says:

    I think that the Competition Act is a red herring in this context. Real estate is provincially regulated, and most (all?) provinces have delegated regulation to self-regulatory industry bodies. The Competition Bureau isn’t likely to step on the toes of RECO (and note that its case against TREB didn’t concern behaviour toward consumers, but limits on what agents could do in competition with each other).

    So anyone who wants change needs to complain to TREB (which could set rules as to what’s allowable on the local board), OREA and RECO, and the provincial government. Provincial changes to REBBA, or rule changes by the above orgs could supercede “offer to treat” common law BS with respect to listing prices. Don’t hold your breath.

    Anyway, suggest that after your next listing goes firm, tell the buyer agent that the number in the Commission to Co-operating Brokerage field was only an offer to treat! Let us know what happens, with audio recordings if possible.

  15. Carl says:

    We all have opinions what the list price could or should mean. I certainly think that it should mean something. But if the question is what it actually means in Toronto TLS listings in 2018, the answer is that it doesn’t mean anything, whether with an offer date or not. It carries as much information as the helpful sentence “absolutely gorgeous apartment in most sought-after location!!!”. This could be changed by adding a legal definition to the list price field in MLS if those in charge of MLS wanted to add clarity, but do they?

  16. Ralph Cramdown says:

    Kodak sounds a lot less interesting than Carbolic Smoke Ball. Gotta read the classics.