Balfour V Balfour ( 1918 − 19) ALL ER 860 ( CA) Case Analysis

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WARRINGTON, L. J. – The wife in this case sues her husband for money which she claims to be due to her from her husband as an agreed allowance of £ 30 a month, the wife agreeing to support herself throughout without calling upon her husband for any maintenance and support. The wife therefore sets out to prove a binding legal contract between herself and her husband, that the husband shall in consideration of a promise by the wife pay her the sum of £ 30 a month. The learned judge in the court below has found in these terms: “It seems to me on these letters that there was a definite bargain between the husband and the wife under which, while the husband was in India and in a sufficient position and the wife was in England living separate from him, she should be paid a definite sum of £ 30 a month, and that agreement was made when the husband returned to Ceylon, and was re- affirmed on at least two occasions after unhappy differences had shown themselves, at any rate on the part of the husband, and when it was probable that their separation might last for some time.” Then he proceeded, having found that there was this definite agreement. With all respect to him it was not a definite agreement at all because it continued under the circumstances arising. But, having found on the facts that there was such an agreement, he proceeded to show that agreement could be supported as a legal contract because there was sufficient consideration in the promise made by the wife.

We have now to determine whether there was in the first place a contract in the legal sense between the husband and wife under which the husband was bound to pay this £ 30 a month. There really is no dispute about the facts. The parties were married in August, 1900. The husband had a post under the Government of Ceylon as director of irrigation, and after the marriage they went to Ceylon and lived there together until the year 1915, except that for a short time in 1906 they together paid a visit to this country, and in 1908 the wife came home to this country in order to submit to an operation. In November, 1915, the wife came to this country, the husband coming home on leave, they came together intending to return. They remained in England until August, 1916, when the husband’s leave had expired and he had to return. The wife, however, on the doctor’s advice, was to remain in England. On August 8, 1916, the husband was about to sail, and it is on that day that it is alleged that the agreement sued upon was made by parol between the husband and wife. The wife gave evidence of what took place, and I think that I cannot do better than refer to the learned judge’s note for the account of what she said took place. She said: “In August, 1916, my husband’s leave was up. I was suffering from rheumatoid arthritis. My doctor advised my staying in England for some months, and not to go out till November 4. I booked a passage for next sailing day in September. On August 8 my husband sailed. He gave me a cheque from August 8 to August 31 for £ 24, and promised to give me £ 30 per month till I joined him in Ceylon.” There were certain letters read as to which I shall have to say a word or two presently, and then the wife said later on: “My husband and I wrote the figure together on August 8 and £34 was shown. Afterwards he said £30.” That means that the husband jotted down on a bit of paper certain figures which showed that the ordinary monthly expenses of the wife, at least, that is what I infer the sheet of paper showed, would amount to £ 22 a month, and then they added a round sum of £ 12, which brought it up to £ 34, but, after some discussion, the amount was taken to be the round sum of £ 30. In cross-examination the wife said that they had not agreed to live apart until subsequent differences arose between them, and that in August, 1916, such agreement as might be made by a couple living in amity was made, the husband assessing the wife’s needs and saying that he would send £ 30 per month. That is really all the evidence as to what took place between the parties. The agreement, if made at all, was a parol agreement made on August 8, 1916. The letters which have been referred to really throw no light at all upon the legal position between the parties. Perhaps the most important thing in the course of these letters is that on one occasion the wife appears to have incurred some extra expense through entertaining some friends of the husband. She asked for some more money and he sent it. That comes to nothing.

Those being the facts, what is really the position? We have to say whether on these facts there is a legal contract between these parties. In other words, we have to decide whether what took place between the parties was in the nature of a legal contract, or whether it was merely an arrangement made between the husband and the wife of the same nature as a domestic arrangement which may be made every day between any ordinary husband and wife who are living together in friendly intercourse. It may be, and I do not for a moment say that it is not, possible nowadays for such a contract as is alleged in the present case to be made between the husband and the wife. The question is whether such a contract was made. That can only be established either by proving that it was made in express terms, or that there is a necessary implication from the circumstances of the parties and the transaction generally that such a contract was made. It is quite plain that no such contract was made in express terms, and there was no bargain on the part of the wife at all. All that took place was this: the two parties met in a friendly way and discussed what would be necessary for the support of the wife while she was detained in England, the husband being in Ceylon, and they came to the conclusion that the sum of £ 30 per month would be about right; but there is no evidence at all of any express bargain by the wife that she would in all the circumstances treat that as compensation for or in satisfaction of the obligations of the husband towards her to maintain her. Can we find a contract from the position of the parties? It seems to me it is quite impossible. If we were to imply such a contract as that in this case we should be implying on the part of the wife that, whatever happened and whatever might be the change of circumstances while the husband was away, she should be content with the sum of £ 30 per month, and fetter herself by an obligation which would be binding upon her in law not to require him to pay anything more. On the other hand, we should be implying on the part of the husband a bargain on his part to pay £ 30 per month for some indefinite period whatever might be his circumstances. There again, it seems to me that it would be impossible to make any such implication. Really the matter 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, when 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 this a bargain which could be enforced in law. The husband expressed his intention to make this payment, and he promised to make this payment, and he was bound in honour to continue it so long as he was in a position to do so. The wife, on the other hand, as far as I can see, made no bargain at all. That is, in my judgment, sufficient to dispose of this case. It is unnecessary to consider whether if the husband failed to make the payments the wife could pledge his credit, or whether if he failed to make the payments the wife could have made some other arrangements. The only question that we have to consider is whether the wife has made out a contract which she has set out to do. In my judgment she has not. I think, therefore, that the judgment of Sargent, J. cannot stand. The appeal ought to be allowed, and judgment ought to be entered for the husband.

ATKIN, L.J. – The defence to this action on the alleged contract is that the husband says he 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 agreements 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, and in which the wife promises either expressly or impliedly to apply the allowances 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. This 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. It would be 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 that when a husband made his wife a promise to give her an allowance of £ 30s, or £ 2 per week, whatever he could afford to give her for the maintenance of the household and children, and she promised 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. The small courts of this country would have to be multiplied one hundredfold if these arrangements did result in fact in legal obligations. They are not sued upon, and the reason that they are not sued upon is not because the parties are reluctant to enforce their legal rights when the agreement is broken, but they are not sued upon because the parties in the inception of the arrangement never intended that they should be sued upon. Agreements such as these, as I say, 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 the 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 the present 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 plain. I think it is 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 wife, and that the wife has not established any contract. The parties were living together, the wife intending to return to Ceylon. The suggestion is that she bound herself to accept, as he bound himself to pay £ 30 per month under all circumstances, and that she bound herself to be satisfied with that sum under all circumstances, and, although she was in ill-health and 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 contract turns does not establish a contract. I think that the written evidence, the letters to which alone, oddly enough, the learned judge in the court below in his judgment refers, do not evidence such a contract, or apply, as they should be applied, to the oral evidence which was given by the wife which is not in dispute. For these reasons I think that the judgment of the learned judge in the court below was wrong, and that this appeal should be allowed.

[DUKE, L.J., delivered judgment to the same effect: Ed].