Balfour v Balfour

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From Wikipedia, the free encyclopedia

Balfour v Balfour

Court Court of Appeal (Civil Division)

Full case name Balfour v Balfour

Decided 25 June 1919

Citation(s) [1919] 2 KB 571

Legislation cited Married Women's Property Act 1882

Warrington LJ, Duke LJ and Atkin LJ

Keywords

Causes of action; Intention to create legal relations; Maintenance;

Marriage; Oral contracts

Balfour v Balfour [1919] 2 KB 571 is a leading English contract law case. It held that

Facts[edit]
Mr. Balfour was a civil engineer, and worked for the Government as the Director
of Irrigation in Ceylon (now Sri Lanka). Mrs Balfour was living with him. In 1915, they
both came back to England during Mr Balfour's leave. But Mrs Balfour had
developed rheumatoid arthritis. Her doctor advised her to stay in England, because the
climate in Ceylon would be detrimental to her health. Mr Balfour's boat was about to set
sail, and he orally promised her £30 a month until she came back to Ceylon. They
drifted apart, and Mr Balfour wrote saying it was better that they remain apart. In March
1918, Mrs Balfour sued him to keep up with the monthly £30 payments. In July she got
a decree nisi and in December she obtained an order for alimony.
At first instance, judge Charles Sargant held that Mr Balfour was under an obligation to
support his wife.

Judgement[edit]
The Court of Appeal unanimously held that there was no enforceable agreement,
although the depth of their reasoning differed. Warrington LJ delivered his opinion first,
the core part being this passage.[1]
The matter really reduces itself to an absurdity when one considers it, because if we
were to hold that there was a contract in this case we should have to hold that with
regard to all the more or less trivial concerns of life where a wife, at the request of her
husband, makes a promise to him, that is a promise which can be enforced in law. All I
can say is that there is no such contract here. These two people never intended to
make a bargain which could be enforced in law. The husband expressed his intention to
make this payment, and he promised to make it, and was bound in honour to continue it
so long as he was in a position to do so. The wife on the other hand, so far as I can see,
made no bargain at all. That is in my opinion sufficient to dispose of the case.
Then Duke LJ gave his. He placed weight on the fact that the parties had not yet been
divorced, and that the promise had been made still whilst as husband and wife.

Duke LJ, previously a Conservative party politician, became the president of the divorce division from 1919 to
1933.

In the Court below the plaintiff conceded that down to the time of her suing in the
Divorce Division there was no separation, and that the period of absence was a period
of absence as between husband and wife living in amity. An agreement for separation
when it is established does involve mutual considerations.
That was why in Eastland v Burchell 3 QBD 432, the agreement for separation was
found by the learned judge to have been of decisive consequence. But in this case
there was no separation agreement at all. The parties were husband and wife, and
subject to all the conditions, in point of law, involved in that relationship. It is impossible
to say that where the relationship of husband and wife exists, and promises are
exchanged, they must be deemed to be promises of a contractual nature. In order to
establish a contract there ought to be something more than mere mutual promises
having regard to the domestic relations of the parties. It is required that the obligations
arising out of that relationship shall be displaced before either of the parties can found a
contract upon such promises. The formula which was stated in this case to support the
claim of the lady was this: In consideration that you will agree to give me 30l. a month I
will agree to forego my right to pledge your credit. In the judgment of the majority of the
Court of Common Pleas in Jolly v Rees (1864) 15 C. B. (N. S.) 628, which was affirmed
in the decision of Debenham v Mellon (1880) 6 App. Cas. 24 Erle C.J. states this
proposition 5 : “But taking the law to be, that the power of the wife to charge her
husband is in the capacity of his agent, it is a solecism in reasoning to say that she
derives her authority from his will, and at the same time to say that the relation of wife
creates the authority against his will, by a presumptio juris et de jure from marriage.”
What is said on the part of the wife in this case is that her arrangement with her
husband that she should assent to that which was in his discretion to do or not to do
was the consideration moving from her to her husband. The giving up of that which was
not a right was not a consideration. The proposition that the mutual promises made in
the ordinary domestic relationship of husband and wife of necessity give cause for
action on a contract seems to me to go to the very root of the relationship, and to be a
possible fruitful source of dissension and quarrelling. I cannot see that any benefit would
result from it to either of the parties, but on the other hand it would lead to unlimited
litigation in a relationship which should be obviously as far as possible protected from
possibilities of that kind. I think, therefore, that in point of principle there is no foundation
for the claim which is made here, and I am satisfied that there was no consideration
*578 moving from the wife to the husband or promise by the husband to the wife which
was sufficient to sustain this action founded on contract. I think, therefore, that the
appeal must be allowed.
Lord Justice Atkin[2] took a different approach, emphasising that there was no "intention
to affect legal relations". That was so because it was a domestic agreement between
husband and wife, and it meant the onus of proof was on the plaintiff, Mrs Balfour. She
did not rebut the presumption.
The defence to this action on the alleged contract is that the defendant, the husband,
entered into no contract with his wife, and for the determination of that it is necessary to
remember that there are agreements between parties which do not result in contracts
within the meaning of that term in our law. The ordinary example is where two parties
agree to take a walk together, or where there is an offer and an acceptance
of hospitality. Nobody would suggest in ordinary circumstances that those agreements
result in what we know as a contract, and one of the most usual forms of agreement
which does not constitute a contract appears to me to be the arrangements which are
made between husband and wife. It is quite common, and it is the natural and inevitable
result of the relationship of husband and wife, that the two spouses should make
arrangements between themselves - agreements such as are in dispute in this action -
agreements for allowances, by which the husband agrees that he will pay to his wife a
certain sum of money, per week, or per month, or per year, to cover either her own
expenses or the necessary expenses of the household and of the children of the
marriage, and in which the wife promises either expressly or impliedly to apply the
allowance for the purpose for which it is given. To my mind those agreements, or many
of them, do not result in contracts at all, and they do not result in contracts even though
there may be what as between other parties would constitute consideration for the
agreement. The consideration, as we know, may consist either in some right, interest,
profit or benefit accruing to one party, or some forbearance, detriment, loss or
responsibility given, suffered or undertaken by the other. That is a well-known definition,
and it constantly happens, I think, that such arrangements made between husband and
wife are arrangements in which there are mutual promises, or in which there is
consideration in form within the definition that I have mentioned. Nevertheless they are
not contracts, and they are not contracts because the parties did not intend that they
should be attended by legal consequences. To my mind it would be of the worst
possible example to hold that agreements such as this resulted in legal obligations
which could be enforced in the Courts. It would mean this, that when the husband
makes his wife a promise to give her an allowance of 30s. or 2l. a week, whatever he
can afford to give her, for the maintenance of the household and children, and she
promises so to apply it, not only could she sue him for his failure in any week to supply
the allowance, but he could sue her for non-performance of the obligation, express or
implied, which she had undertaken upon her part. All I can say is that the small Courts
of this country would have to be multiplied one hundredfold if these arrangements were
held to result in legal obligations. They are not sued upon, not because the parties are
reluctant to enforce their legal rights when the agreement is broken, but because the
parties, in the inception of the arrangement, never intended that they should be sued
upon. Agreements such as these are outside the realm of contracts altogether. 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. The terms may be repudiated, varied or renewed as performance proceeds or
as disagreements develop, and the principles of the common law as to exoneration and
discharge and accord and satisfaction are such as find no place in the domestic code.
The parties themselves are advocates, judges, Courts, sheriff's officer and reporter. In
respect of these promises each house is a domain into which the King's writ does not
seek to run, and to which his officers do not seek to be admitted. The only question in
this case is whether or not this promise was of such a class or not. For the reasons
given by my brethren it appears to me to be plainly established that the promise here
was not intended by either party to be attended by legal consequences. I think
the onus was upon the plaintiff, and the plaintiff has not established any contract. The
parties were living together, the wife intending to return. The suggestion is that the
husband bound himself to pay 30l. a month under all circumstances, and she bound
herself to be satisfied with that sum under all circumstances, and, although she was in
ill-health and alone in this country, that out of that sum she undertook to defray the
whole of the medical expenses that might fall upon her, whatever might be the
development of her illness, and in whatever expenses it might involve her. To my mind
neither party contemplated such a result. I think that the parol evidence upon which the
case turns does not establish a contract. I think that the letters do not evidence such a
contract, or amplify the oral evidence which was given by the wife, which is not in
dispute. For these reasons I think the judgment of the Court below was wrong and that
this appeal should be allowed.