2 K. B.

KING'S BENCH DIVISION.

[IN TBE COURT OF APPEAL.]

571

C. A.
1919

BALFOUR v. BALFOUR.
Hvsband and WifeContractTemporary SeparationAllowance for
Maintenance of WifeDomestic Arranger, ntNo resulting Contract.
The plaintiff sued the defendant (her husband) for money due under
an alleged verbal agreement, whereby he undertook to allow her 302.
a month in consideration of her agreeing to support herself without
calling upon him for any further maintenance. The parties were married
in 1900. The husband was resident in Ceylon, where he held a Government appointment. The plaintiff accompanied him to Ceylon, but
in 1915 they returned to England, he being on leave. In 1916 he
went back to Ceylon, leaving her in England, where she had to remain
temporarily under medical advice. The plaintiff alleged that the
defendant before returning to Ceylon entered into the above agreement.
The parties remaining apart, the plaintiff subsequently obtained a
decree nisi for restitution of conjugal rights, and an order for alimony:
Held, that the alleged agreement did not constitute a legal'contract,
but was only an ordinary domestic arrangement which could not be
sued upon. Mutual promises made in the ordinary domestic relationship
of husband and wife do not of necessity give cause for action on a contract.
Decision of Sargant J. reversed.

from a decision of Sargant J., sitting as an additional

judge of the King's Bench Division.
The plaintiff sued the defendant (her husband) for money
which she claimed to be due in respect of an agreed allowance
of 30Z. a month. The alleged agreement was entered into
under the following circumstances. The parties were married
in August, 1900. The husband, a civil engineer, had a post
under the Government of Ceylon as Director of Irrigation,
and after the marriage he and his wife went to Ceylon, and
lived there together until the year 1915, except; that in 1906
they paid a short visit to this country, and in 1908 the wife
came to England in order to undergo an operation, after
which she returned to Ceylon. In November, 1915, she
came to this country with her husband, who was on leave.
They remained in England until August, 1916, when the
husband's leave was up and he had to return. The wife
however on the doctor's advice remained in England. On
APPEAL

Jum24>

25.

572

KING'S BENCH DIVISION.

[1919]

C. A. August 8, 1916, the husband being about to sail, the alleged

1919
parol agreement sued upon was made. The plaintiff, as
BAbFouR appeared from the judge's note, gave the following evidence
wnat
BALFOUR. *
tk place : " I n August, 1916, defendant's leave
was up. I was suffering from rheumatic arthritis. The
doctor advised my sta^ ng in England for some months, not
to go out till November 4. On August 8 my husband sailed.
He gave me a cheque from 8th to 31st for 241., and promised
to give me 30Z. per month till I returned." Later on she
said: " My husband and I wrote the figures together on
August 8; 34?.-shown. Afterwards he said 30Z." In
cross-examination she said that they had not agreed to live
apart until subsequent differences arose between them, and
that the agreement of August, 1916, was one which might
be made by a couple in amity. Her husband in consultation
with her assessed her needs, and said he would send SOI.
per month for her maintenance. She further said that she
then understood that the defendant would be returning to
England in a few months, but that he afterwards wrote to
her suggesting that they had better remain apart. In March,
1918, she commenced proceedings for restitution of conjugal
rights, and on July 30 she obtained a decree nisi. On
December 16, 1918, she obtained an order for alimony.
Sargant J. held that the husband was under an obligation
to support his wife, and the parties had contracted that the
extent of that obligation should be defined in terms of so
much a month. The consent of the wife to that arrangement
was a sufficient consideration to constitute a contract which
could be sued upon.
He accordingly gave judgment for the plaintiff.
The husband appealed.
Barrington-Ward K.C. and Du Parcq for the appellant.
Where husband and wife are only temporarily living apart
an agreement like that in the present case confers no contractual
rights. There was no agreement for a separation. The
agreement here was a purely domestic arrangement intended
to take effect until the wife should rejoin her husband. I t

2KB.

KING'S BENCH DIVISION.

573

cannot be regarded as a binding contract. The wife gave no

c. A.
consideration for the promise.
1919
On t h e evidence it is submitted that this was a temporary BALFOTO
domestic arrangement caused by the absence of the husband BALF'OUB.
abroad, and was not intended to have a contractual operation.
Hawke K.C. and Tebbs for the respondent.
Where a husband and wife are living together the wife is
as capable .of contracting with her husband that he shall
give her a particular sum as she is of contracting with any
other person.
Where husband and wife separate by mutual consent,
the wife making her own terms as to her income and that
income proves insufficient for her support, the wife has no
authority to pledge her husband's credit: Eastland v.
Burchell. (1)
[DTTKE L.J. That may be because they 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 right of the wife to pledge her husband's
credit arises. If, however, instead of doing so she agrees
to give up that right and to accept an allowance instead,
she is entitled to sue for it.
The agency of the wife arises either where the husband
leaves her wrongfully, or where the parties are by mutual
consent living apart.
In Lush on Husband and Wife, 3rd ed., p. 404, it is stated
t h a t : " I f the wife is living apart from her husband either
(a) on account of the husband's misconduct, the wife being
left without adequate means; (6) or by mutual consent:
and the husband has agreed to make her an allowance, and
neglects to pay it, the law gives her an absolute authority
to pledge his credit for suitable necessaries."
[DUKE L.J. Are not those cases where the parties are
matrimonially separated ?]
[WARRINGTON L.J. referred to Lush on Husband and
Wife, 3rd ed., p. 386.]
The agency arises where there is a separation in fact. The
(1) (1878) 3 Q. B. D. 432.

574

KING'S BENCH DIVISION.

[1919]

c. A.
1919

consideration for the promise by the husband to pay the

allowance was that she gave up her right to pledge his credit.
BALFOUR
[DUKE L.J. The husband has a right to withdraw the
aut
BALFOUR
hority to pledge his credit. The wife's consent, therefore,
cannot be treated as consideration to support such a contract
as this.]
Where a husband leaves his wife in England and goes
abroad it is no longer at his will that she shall have authority
to pledge his credit. If there be a separation in fact (except
for the wife's guilt) the agency of necessity arises. The parties
here intended to enter into a binding contract.
WARRINGTON L.J. (after stating the facts). Those being
the facts we have to say whether there is a legal contract
between the parties, in other words, whether what took
place between them was in the domain of a contract or whether
it was merely a domestic arrangement such as may be made
every day between a 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 for such a contract as is alleged
in the present case to be made between husband and wife.
The question is whether such a contract was made. That
can only be determined 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. I t 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 husband and wife met in a friendly way
and discussed what would be necessary for her support while
she was detained in England, the husband being in Ceylon,
and they came to the conclusion that 301. a month would
be about right, but there is no evidence of any express
bargain by the wife that she would in all the circumstances
treat that as in satisfaction of the obligation of the husband
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 in this case we should be

2E.B.

KING'S BENCH DIVISION.

575

implying on the part of the wife that whatever happened

C. A.
and whatever might be the change of circumstances while
1919
the husband was away she should be content with this 301. BALFOUR
a month, and bind herself by an obligation in law not to require g ^ ^ j ,
him to pay anything more ; and on the other hand we should WOrringtonL J
be implying on the part of the husband a bargain to pay
201. a month for some indefinite period whatever might be
his circumstances. Then again it seems to me that it would
be impossible to make any such implication. 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
i t 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.
I t 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 she could have
made some other arrangements. The only question we
have to consider is whether the wife has made out a contract
which she has set out to do. In my opinion she has not.
I think the judgment of Sargant J. cannot stand, the
appeal ought to be allowed and judgment ought to be entered
for the defendant.
DUKE L.J. I agree. This is in some respects an important
case, and as we differ from the judgment of the Court below
I propose to state concisely my views and the grounds which
nave led me to the conclusion at which I have arrived.
Substantially the question is whether the promise of the
husband to the wife that while she is living absent from

576

KING'S BENOH DIVISION.

[1919]

C. A.
1919

him he will make her a periodical allowance involves in

law a consideration on the part of the wife sufficient to
convert that promise into a binding agreement. In my
BALFOUR opinion it does not. I do not dissent, as at present advised,
DukeiJ. from the proposition that the spouses in this case might
have made an agreement which would have given the plaintiff
a cause of action, and I am inclined to think that the promise
of the wife in respect of her separate estate could have founded
an action in contract within the principles of the Married
Women's Property Act, 1882. But we have to see whether
there is evidence of any such exchange of promises as would
make the promise of the husband the basis of an agreement.
It was strongly urged by Mr. Hawke that the promise being
absolute in form ought to be construed as one of the mutual
promises which make an agreement. It was said that a
promise and an implied undertaking between strangers,
such as the promise and implied undertaking alleged in thi&
case would have founded an action on contract. That may
be so, but it is impossible to disregard in this case what was
the basis of the whole communications between the parties
under which the alleged contract is said to have been formed..
The basis of their communications was their relationship.
of husband and wife, a relationship which creates certain.
obligations, but not that which is here put in suit. There wasa discussion between the parties while they were absent from
one another, whether they should agree upon a separation.
In the Court below the plaintiff conceded that down to the tim&
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 (1) 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
(1) 3 Q. B. D. 432.

2 K. B.

KING'S BENCH DIVISION.

577

relationship. I t is impossible to say that where the relationship

C. A.
of husband and wife exists, and promises are exchanged,
1919
they must be deemed to be promises of a contractual nature. BALFOUR
I n order to establish a contract there ought to be some- BAIiI-OUB.
thing more than mere mutual promises having regard to Duke~L.j.
the domestic relations of the parties. I t is required t h a t
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 t h a t you will agree to give me SOI. a month
I will agree to forego my right to pledge your credit. I n the
judgment of the majority of the Court of Common Pleas
in Jolly v. Rees (1), which was affirmed in. the decision of
Debenham v. Mellon. (2) Erie C.J. states this proposition (3) :
" But taking the law to be, t h a t the power of the wife to charge
her husband is in the capacity of his agent, it is a solecism
in reasoning to say t h a t she derives her authority from his will,
and at the same time to say t h a t 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 t h a t her arrangement with her husband t h a t 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 t h a t 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 t h a t
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 t h a t kind. I think, therefore, that in point
of principle there is no foundation for the claim which is made
here, and I am satisfied t h a t there was no consideration
(1) (1864) 15 C. B. (N. S.) 628.
(2) (1880) 6 App. Cas. 24.
(3) 15 C. B. (N. S.) 641.
VOL. II. 1919.
2S
2'

578

KING'S BENCH DIVISION.

[1919]

C. A.
1919

moving from the wife to the husband or promise by the husband

to the wife which was sufficient to sustain this action founded
BAWOUB on contract. I think, therefore, t h a t the appeal must be
BAI^HJB.

allowed.

Duke L.J.

ATKIN L.J. 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
themselvesagreements 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

2 K. B.

KING'S BENCH DIVISION.

579

is consideration in form within the definition that I have

C. A.
mentioned. Nevertheless they are not contracts, and they
1919
are not contracts because the parties did not intend that BAU?OUR
they should be attended by legal consequences. To my BAWOUH.
mind it would be of the worst possible example to hold that A ttol.j.
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 21. 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 considex*ation 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
2S2

580

KING'S BENCH DIVISION.

[1919]

C. A.
1919

not intended by either party to be attended by legal consequences. I think the onus was upon the plaintiff, and
BALFOUR the plaintiff has not established any contract.
The
ar es
BALFOUR. P ti
were living together, the wife intending to return.
AtkuTLj. The suggestion is that the husband bound himself to pay
SOI. 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.
Appeal allowed.
Solicitors for appellant: Lewis & Lewis.
Solicitors for respondent: Sawyer & Withall, for John C.
Buckwell, Brighton.
G. A. S.