Balfour v. Balfour

A husband in Ceylon promised his wife £30 a month while she stayed in England on medical advice. After the husband suggested they remain apart, she sued on that promise as a contract. The Court of Appeal held that it was a domestic arrangement, not a contract.

Quick Revision

Parties

The husband (Balfour) — defendant and appellant; a civil engineer, Director of Irrigation under the Government of Ceylon.

The wife (Balfour) — plaintiff and respondent; sued her husband for money due under the alleged verbal agreement.

Sargant J. — not a party; the judge of the King's Bench Division whose decision was appealed.

Procedural History

1. The wife sued the husband in the King's Bench Division for money she said was due as an agreed allowance of £30 a month.
2. Sargant J., sitting as an additional judge, held for the wife and gave judgment for her.
3. The husband appealed to the Court of Appeal.
4. Counsel for the appellant were Barrington-Ward K.C. and Du Parcq. Counsel for the respondent were Hawke K.C. and Tebbs. The appeal was heard on 24 and 25 June 1919.
5. The Court of Appeal allowed the appeal and reversed the decision of Sargant J.

Facts

1. The parties married in August 1900.
2. The husband was a civil engineer and held a post under the Government of Ceylon as Director of Irrigation.
3. After the marriage the couple lived in Ceylon together until 1915. There were two exceptions. In 1906 they paid a short visit to England. In 1908 the wife came to England for an operation and then returned to Ceylon.
4. In November 1915 the wife came to England with her husband, who was on leave.
5. They stayed in England until August 1916, when the husband's leave was up and he had to return to Ceylon.
6. The wife was suffering from rheumatic arthritis. On the doctor's advice she stayed in England. He advised her not to go out until 4 November.
7. On 8 August 1916 the husband was about to sail. On that day the alleged verbal (parol) agreement was made.
8. The judge's note records the wife's evidence. On 8 August the husband sailed. He gave her a cheque for £24 for 8 to 31 August. He promised £30 a month till she returned.
9. The wife also said that she and her husband wrote the figures together on 8 August. £34 was shown, and afterwards he said £30.
10. In cross-examination the wife said they had not agreed to live apart until later differences arose. She said the agreement was one that might be made by a couple in amity.
11. She said her husband, in consultation with her, assessed her needs and said he would send £30 a month for her maintenance.
12. She understood at the time that he would return to England in a few months. He afterwards wrote to her suggesting that they had better remain apart.
13. In March 1918 she began proceedings for restitution of conjugal rights (a suit to compel a spouse to resume married life).
14. On July 30 she obtained a decree nisi (a provisional decree that becomes final unless cause is shown against it). On 16 December 1918 she obtained an order for alimony (maintenance payable to a spouse).
15. The wife sued the husband for the money she claimed as due under the agreed allowance of £30 a month. The judgment does not date this suit.

Issues Raised

1. Was there a legal contract between the husband and the wife? Or was it only a domestic arrangement, such as husband and wife make every day when living together in friendly intercourse?
2. Was the husband's promise to pay a periodical allowance supported by consideration from the wife sufficient to make it a binding agreement?
3. Was there an express contract, or one necessarily implied from the circumstances of the parties and the transaction generally?
4. Did the wife prove that the parties intended the arrangement to have legal consequences?

Arguments Contended

For the appellant (the husband):

• Where husband and wife are only temporarily living apart, an agreement like this confers no contractual rights.
• There was no agreement for a separation. The agreement was a purely domestic arrangement meant to last until the wife rejoined her husband.
• The arrangement was caused by the husband's absence abroad. It was not intended to have contractual operation and cannot be regarded as a binding contract.
• The wife gave no consideration for the promise.

For the respondent (the wife):

• Where husband and wife live together, she is as capable of contracting with him for a particular sum as with any other person.
• Where spouses separate by mutual consent and her own income proves insufficient, the wife has no authority to pledge (bind) her husband's credit: Eastland v. Burchell (1878) 3 Q.B.D. 432.
• Duke L.J. suggested this rule may apply because the spouses must be taken to have agreed not to live as husband and wife.
• Living apart is a question of fact. If the parties live apart by mutual consent, the wife can pledge her husband's credit. If she instead gives up that right and accepts an allowance, she can sue for the allowance.
• Lush on Husband and Wife, 3rd ed., p. 404, was relied on. It says a wife may live apart by mutual consent, or because of the husband's misconduct, being left without adequate means. If he agrees an allowance and neglects to pay it, she has authority to pledge his credit for suitable necessaries (things needed for living).
• Duke L.J. asked whether those were cases where the parties were matrimonially separated. Warrington L.J. referred to Lush, 3rd ed., p. 386.
• The agency arises either where the husband leaves the wife wrongfully or where the parties live apart by mutual consent. It arises where there is a separation in fact.
• The consideration for the husband's promise was that she gave up her right to pledge his credit.
• Duke L.J. answered that the husband has a right to withdraw that authority, so her consent cannot be consideration for such a contract.
• Counsel replied that, where a husband leaves his wife in England and goes abroad, the authority no longer depends on his will. If there is a separation in fact, except for the wife's guilt, the agency of necessity arises.
• The parties intended to enter into a binding contract.

Court's Reasoning

Opinion of Warrington L.J.

1. Noted: The question is whether there is a legal contract. Was it in the domain of contract, or merely a domestic arrangement of the kind made daily by a husband and wife living together in friendly intercourse?
2. Noted: He does not say such a contract cannot be made between husband and wife. The question is whether it was made.
3. Noted: That can be shown only by proof of express terms, or by a necessary implication from the circumstances of the parties and the transaction generally.
4. Held: No such contract was made in express terms. There was no bargain on the wife's part at all.
5. Noted: The husband and wife met in a friendly way. They discussed what she would need for support while she was detained in England and the husband was in Ceylon. They concluded that £30 a month would be about right.
6. Noted: There is no evidence of an express bargain by the wife to treat that sum as satisfying the husband's duty to maintain her.
7. Held: A contract cannot be found from the position of the parties. It is quite impossible.
8. Why: Implying a contract would mean the wife must be content with £30 a month whatever happened. She would bind herself in law not to ask for more.
9. Why: It would also mean the husband bound himself to pay £30 a month for an indefinite period, whatever his circumstances. Making such an implication is impossible.
10. Noted: The matter reduces to an absurdity. A contract here would mean every promise a wife makes at her husband's request, about trivial concerns of life, could be enforced in law.
11. Held: "These two people never intended to make a bargain which could be enforced in law."
12. Noted: The husband expressed an intention to pay and promised to do so. He was bound in honour to continue while he was in a position to do so. The wife made no bargain at all.
13. Noted: It is unnecessary to consider whether the wife could pledge his credit if he failed to pay, or make other arrangements. The only question is whether she made out the contract she set out to prove. She did not.
14. Held: The judgment of Sargant J. cannot stand. The appeal should be allowed and judgment entered for the defendant.

Opinion of Duke L.J.

1. Noted: He agrees with Warrington L.J. He gives his own reasons briefly because this is in some respects an important case and the Court differs from the court below.
2. Noted: The husband promised a periodical allowance while the wife lived apart from him. The question is whether the wife gave consideration sufficient to make that promise a binding agreement.
3. Held: In his opinion it does not.
4. Noted: As at present advised, he does not dissent from the view that the spouses might have made an agreement giving the plaintiff a cause of action. He is inclined to think her promise about her separate estate could have founded a contract action under the Married Women's Property Act, 1882.
5. Noted: The Court must see whether there is evidence of an exchange of promises that would make the husband's promise the basis of an agreement.
6. Noted: Counsel for the respondent urged that the promise, being absolute in form, must be one of the mutual promises that make an agreement. Between strangers a promise and implied undertaking like this would found a contract action.
7. Held: That may be so, but the basis of all the communications was the relationship of husband and wife. That relationship creates certain obligations, but not the one sued on here.
8. Noted: The parties discussed, while apart, whether they should agree to a separation. The wife conceded in the court below that there was no separation until she sued in the Divorce Division. The absence was one between husband and wife living in amity.
9. Noted: An agreement for separation, when established, does involve mutual considerations. That is why in Eastland v. Burchell the separation agreement was decisive.
10. Held: Here there was no separation agreement at all. The parties were husband and wife, subject in law to all the conditions of that relationship.
11. Held: Where husband and wife exchange promises, the promises cannot be taken to be contractual. To establish a contract there must be something more than mutual promises, given the domestic relations of the parties.
12. Held: The obligations arising from the relationship must be displaced before either party can found a contract on such promises.
13. Noted: The wife's formula was: in consideration that you agree to give me £30 a month, I agree to give up my right to pledge your credit.
14. Noted: Duke L.J. cited the majority judgment in Jolly v. Rees (1864) 15 C.B. (N.S.) 628, affirmed in Debenham v. Mellon (1880) 6 App. Cas. 24. Erle C.J. there said it is illogical to say a wife's authority derives from her husband's will and also that her status creates authority against his will.
15. Held: The wife's case was that she agreed to what was in the husband's discretion to do or not do. Giving up what was not a right was not consideration.
16. Held: Suppose mutual promises in the ordinary domestic relationship of husband and wife of necessity gave cause for action on a contract. That would go to the root of the relationship. It could be a fruitful source of dissension and quarrelling.
17. Held: No benefit would result to either party. It would lead to unlimited litigation in a relationship that should as far as possible be protected from it.
18. Held: In principle there is no foundation for the claim. No consideration moved from the wife to the husband, and no promise by the husband to the wife was sufficient to sustain this contract action. The appeal must be allowed.

Opinion of Atkin L.J.

1. Noted: The defence is that the husband entered into no contract with his wife. To decide it, one must remember that some agreements between parties do not result in contracts within the meaning of that term in our law.
2. Noted: Ordinary examples are two parties agreeing to take a walk together, or an offer and acceptance of hospitality. Nobody would suggest these are contracts.
3. Noted: One of the most usual forms of agreement that is not a contract is an arrangement between husband and wife.
4. Noted: It is quite common, and a natural result of the relationship, that spouses make arrangements about allowances. The husband agrees to pay a sum per week, month or year to cover her own expenses, or the necessary expenses of the household and children. The wife promises, expressly or impliedly, to apply it for that purpose.
5. Held: Many of these agreements do not result in contracts at all. They do not, even where there may be what would be consideration between other parties.
6. Noted: Consideration may be some right, interest, profit or benefit to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. Arrangements between spouses often contain mutual promises or consideration in form within that definition.
7. Held: Nevertheless they are not contracts, because the parties did not intend that they should have legal consequences.
8. Why: It would be of the worst possible example to hold that such agreements create legal obligations enforceable in the courts.
9. Noted: A wife could sue for a missed weekly allowance for the household and children. The husband could sue her for non-performance of her express or implied undertaking. The judge said "the small Courts of this country would have to be multiplied one hundredfold".
10. Noted: Such arrangements are not sued upon, not because parties are reluctant to enforce legal rights, but because at the start they never intended them to be sued upon.
11. Held: "Agreements such as these are outside the realm of contracts altogether."
12. Noted: The common law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. "The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts."
13. Noted: The terms may be repudiated, varied or renewed as performance proceeds or disagreements develop. The common law principles of exoneration (release from a duty), discharge and accord and satisfaction find no place in the domestic code.
14. Noted: The parties are advocates, judges, courts, sheriff's officer and reporter. "each house is a domain into which the King's writ does not seek to run".
15. Held: The only question is whether this promise was of that class. For the reasons given by his fellow judges, the promise was plainly not intended by either party to have legal consequences.
16. Held: The burden of proof was on the plaintiff, and she has not established any contract. The parties were living together, and the wife intended to return.
17. Noted: The suggestion was that the husband bound himself to pay £30 a month under all circumstances. The wife would bind herself to be satisfied with that sum under all circumstances.
18. Noted: That would include, though she was ill and alone in England, paying all her medical expenses out of the sum, whatever the illness required. Neither party contemplated such a result.
19. Held: The parol evidence (spoken evidence) on which the case turns does not establish a contract. The letters do not evidence such a contract or add to the wife's oral evidence, which is not in dispute.
20. Held: The judgment of the court below was wrong and the appeal should be allowed.

Statutes and provisions

• Married Women's Property Act, 1882 (Duke L.J.): he was inclined to think the wife's promise about her separate estate could have supported a contract action under its principles. The judgment does not set out any section.
• The judgment cites no other statute, section or article. It rests on the common law of contract and on the law of husband and wife.

Authorities

• Eastland v. Burchell, (1878) 3 Q.B.D. 432: relied on by the respondent on a wife's authority to pledge her husband's credit where spouses separate by mutual consent. Duke L.J. said a separation agreement was decisive there, and that there was none here.
• Jolly v. Rees, (1864) 15 C.B. (N.S.) 628: Duke L.J. cited Erle C.J. on the source of a wife's power to charge her husband as his agent.
• Debenham v. Mellon, (1880) 6 App. Cas. 24: it affirmed the decision in Jolly v. Rees.
• Lush on Husband and Wife, 3rd ed., pp. 404 and 386: a textbook the respondent relied on for the wife's authority to pledge credit. It is not a case.
• Also cited in footnotes: none. The judgment text has no footnotes.

Judgement

1. The appeal is allowed.
2. The decision of Sargant J. is reversed.
3. Judgment is to be entered for the defendant (Warrington L.J.).
4. The judgment records no order as to costs.

Legal Principle / Ratio

Agreements between husband and wife about a domestic allowance are ordinary domestic arrangements. They are not contracts, because the parties do not intend legal consequences. The plaintiff must prove the contract.

Key holding (Atkin L.J.): "they are not contracts because the parties did not intend that they should be attended by legal consequences."

Critical Analysis

Analysis based on the judgment text.

• Warrington L.J. and Duke L.J. stress the absence of a bargain or of consideration from the wife. Warrington L.J. also finds no intention to make an enforceable bargain. Atkin L.J. rests chiefly on absence of intention, even where consideration exists in form.
• The three opinions differ in emphasis. Duke L.J. also says spouses might in some cases make a contract, and Warrington L.J. says it is not impossible.
• The decision turns on the parties being together in amity. Duke L.J. contrasts a separation agreement, which involves mutual considerations.
• Atkin L.J. relies on the burden of proof and on the wife's evidence that the arrangement was one a couple in amity might make.

Significance

• The case is a leading example of an agreement that is not a contract because the parties did not intend legal consequences.
• It shows that mutual promises and consideration in form do not by themselves make a contract.
• It separates domestic arrangements between spouses from separation agreements.

Exam-Important Points

• Rule: an agreement is not a contract unless the parties intended legal consequences. Trap: consideration in form is not enough.
• Rule: the plaintiff must prove a contract, express or necessarily implied. Trap: the wife's evidence showed only a friendly discussion.
• Rule: domestic arrangements between spouses living in amity are outside contract. Trap: this is not a rule that spouses can never contract.
• Trap: the three Lords Justices gave separate reasons. Atkin L.J. relied chiefly on absence of intention. Duke L.J. relied on absence of consideration. Warrington L.J. found no bargain and no intention.
• Trap: an agreement for separation involves mutual considerations. Duke L.J. distinguished Eastland v. Burchell on that basis.
• Result: appeal allowed; Sargant J.'s decision reversed; judgment for the husband.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so no paragraph numbers are cited; the report is [1919] 2 K.B. 571.