1

Balfour v engineer, had a doctor's advice husband and I

Balfour. post under the remained in wrote the figures
Government of England. On together on
In the Court of Ceylon as August 8, 1916, August 8; 34l.
Appeal. Director of the husband being shown.
Irrigation, and about to sail, the Afterwards he
L. Warrington, after the marriage alleged parol said 30l.” In
Duke, and Atkin he and his wife agreement sued cross-examination
went to Ceylon, upon was made. she said that they
1919 June 24, 25. and lived there The plaintiff, as had not agreed to
together until the appeared from the live apart until
APPEAL from a year 1915, except judge's note, gave subsequent
decision of that in 1906 they the following differences arose
Sargant J., sitting paid a short visit evidence of what between them,
as an additional to this country, took place: “In and that the
judge of the and in 1908 the August, 1916, agreement of
King's Bench wife came to defendant's leave August, 1916, was
Division. England in order was up. I was one which might
to undergo an suffering from be made by a
The plaintiff sued operation, after rheumatic couple in amity.
the defendant (her which she arthritis. The Her husband in
husband) for returned to doctor advised my consultation with
money which she Ceylon. In staying in England her assessed her
claimed to be due November, 1915, for some months, needs, and said he
in respect of an she came to this not to go out till would send 30l.
agreed allowance country with her November 4. On per month for her
of 30l. a month. husband, who was August 8 my maintenance. She
The alleged on leave. They husband sailed. further said that
agreement was remained in He gave me a she then
entered into under England until cheque from 8th understood that
the following August, 1916, to 31st for 24l., the defendant
circumstances. when the and promised to would be
The parties were husband's leave give me 30l. per returning to
married in August, was up and he had month till I England in a few
1900. The to return. The wife returned.” Later months, but that
husband, a civil however on the on she said: “My he afterwards
wrote to her could be sued binding contract. and wife separate
suggesting that upon. The wife gave no by mutual
they had better consideration for consent, the wife
remain apart. In He accordingly the promise. making her own
March, 1918, she gave judgment for terms as to her
commenced the plaintiff. On the evidence income and that
proceedings for it is submitted that income proves
restitution of The husband this was a insufficient for her
conjugal rights, appealed. temporary support, the wife
and on July 30 she domestic has no authority to
obtained a decree Barrington-Ward arrangement pledge her
nisi. On K.C. and Du caused by the husband's credit:
December 16, Parcq for the absence of the Eastland v.
1918, she appellant. husband abroad, Burchell.
obtained an order and was not
for alimony. Where husband intended to have a
and wife are only contractual *****
Sargant J. held temporarily living operation.
that the husband apart an WARRINGTON
was under an agreement like Hawke K.C.and L.J.
obligation to that in the present Tebbs for the
support his wife, case confers no respondent. (after stating the
and the parties contractual rights. facts). Those
had contracted There was no Where a husband being the facts we
that the extent of agreement for a and wife are have to say
that obligation separation. The living together the whether there is a
should be defined agreement here wife is as capable legal contract
in terms of so was a purely of contracting between the
much a month. domestic with her husband parties, in other
The consent of the arrangement that he shall give words, whether
wife to that intended to take her a particular what took place
arrangement was a effect until the sum as she is of between them was
sufficient wife should rejoin contracting with in the domain of a
consideration to her husband. It any other person. contract or
constitute a cannot be whether it was
contract which regarded as a Where husband merely a domestic

3
arrangement such such contract was of the parties? It would be
as may be made made in express seems to me it is impassible to
every day between terms, and there quite impossible. make any such
a husband and was no bargain on If we were to implication. The
wife who are the part of the imply such a matter really
living together in wife at all. All that contract in this reduces itself to
friendly took place was case we should be an absurdity when
intercourse. It this: The husband implying on the one considers it,
may be, and I do and wife met in a part of the wife because if we
not for a moment friendly way and that whatever were to hold that
say that it is not, discussed what happened and there was a
possible for such a would be whatever might be contract in this
contract as is necessary for her the change of case we should
alleged in the support while she circumstances have to hold that
present case to be was detained in while the husband with regard to all
made between England, the was away she the more or less
husband and wife. husband being in should be content trivial concerns of
The question is Ceylon, and they with this 30l. a life where a wife,
whether such a came to the month, and bind at the request of
contract was conclusion that herself by an her husband,
made. That can 30l. a month obligation in law makes a promise
only be would be about not to require him to him, that is a
determined either right, but there is to pay anything promise which
by proving that it no evidence of more; and on the can be enforced in
was made in any express other hand we law. All I can say
express terms, or bargain by the should be is that there is no
that there is a wife that she implying on the such contract
necessary would in all the part of the here. These two
implication from circumstances husband a bargain people never
the circumstances treat that as in to pay 30l. a intended to make
of the parties, and satisfaction of the month for some a bargain which
the transaction obligation of the indefinite period could be enforced
generally, that husband to whatever might be in law. The
such a contract maintain her. Can his circumstances. husband
was made. It is we find a contract Then again it expressed his
quite plain that no from the position seems to me that it intention to make

4
this payment, and has set out to do. she is living Women's Property
he promised to In my opinion she absent from him Act, 1882. But we
make it, and was has not. he will make her a have to see
bound in honour periodical whether there is
to continue it so I think the allowance evidence of any
long as he was in judgment of involves in law a such exchange of
a position to do Sargant J. cannot consideration on promises as would
so. The wife on stand, the appeal the part of the make the promise
the other hand, so ought to be wife sufficient to of the husband the
far as I can see, allowed and convert that basis of an
made no bargain judgment ought to promise into a agreement. It was
at all. That is in be entered for the binding strongly urged by
my opinion defendant. agreement. In my Mr. Hawke that
sufficient to opinion it does the promise being
dispose of the DUKE L.J. not. I do not absolute in form
case. dissent, as at ought to be
I agree. This is in present advised, construed as one
It is unnecessary some respects an from the of the mutual
to consider important case, proposition that promises which
whether if the and as we differ the spouses in this make an
husband failed to from the judgment case might have agreement. It was
make the of the Court made an said that a
payments the wife below I propose to agreement which promise and an
could pledge his state concisely my would have given implied
credit or whether views and the the plaintiff a undertaking
if he failed to grounds which cause of action, between strangers,
make the have led me to the and I am inclined such as the
payments she conclusion at to think that the promise and
could have made which I have promise of the implied
some other arrived. wife in respect of undertaking
arrangements. The Substantially the her separate estate alleged in this
only question we question is could have case would have
have to consider is whether the founded an action founded an action
whether the wife promise of the in contract within on contract. That
has made out a husband to the the principles of may be so, but it
contract which she wife that while the Married is impossible to

5
disregard in this something more to that which was unlimited
case what was the than mere mutual in his discretion to litigation in a
basis of the whole promises having do or not to do relationship which
communications regard to the was the should be
between the domestic relations consideration obviously as far as
parties under of the parties. It is moving from her possible protected
which the alleged required that the to her husband. from possibilities
contract is said to obligations arising The giving up of of that kind. I
have been formed. out of that that which was think, therefore,
The basis of their relationship shall not a right was not that in point of
communications be displaced a consideration. principle there is
was their before either of The proposition no foundation for
relationship of the parties can that the mutual the claim which is
husband and wife, found a contract promises made in made here, and I
a relationship upon such the ordinary am satisfied that
which creates promises. The domestic there was no
certain formula which relationship of consideration
obligations, but was stated in this husband and wife moving from the
not that which is case to support the of necessity give wife to the
here put in suit. claim of the lady cause for action husband or
***** was this: In on a contract promise by the
consideration that seems to me to go husband to the
It is impossible to you will agree to to the very root of wife which was
say that where the give me 30l. a the relationship, sufficient to
relationship of month I will agree and to be a sustain this action
husband and wife to forego my right possible fruitful founded on
exists, and to pledge your source of contract. I think,
promises are credit. dissension and therefore, that the
exchanged, they ***** quarrelling. I appeal must be
must be deemed What is said on cannot see that allowed.
to be promises of the part of the any benefit would
a contractual wife in this case is result from it to ATKIN L.J.
nature. In order to that her either of the
establish a arrangement with parties, but on the The defence to
contract there her husband that other hand it this action on the
ought to be she should assent would lead to alleged contract is

6
that the defendant, a contract appears marriage, and in definition, and it
the husband, to me to be the which the wife constantly
entered into no arrangements promises either happens, I think,
contract with his which are made expressly or that such
wife, and for the between husband impliedly to apply arrangements
determination of and wife. It is the allowance for made between
that it is necessary quite common, the purpose for husband and wife
to remember that and it is the which it is given. are arrangements
there are natural and To my mind those in which there are
agreements inevitable result of agreements, or mutual promises,
between parties the relationship of many of them, do or in which there
which do not husband and wife, not result in is consideration in
result in contracts that the two contracts at all, form within the
within the spouses should and they do not definition that I
meaning of that make result in contracts have mentioned.
term in our law. arrangements even though there Nevertheless they
The ordinary between may be what as are not contracts,
example is where themselves - between other and they are not
two parties agree agreements such parties would contracts because
to take a walk as are in dispute in constitute the parties did not
together, or where this action - consideration for intend that they
there is an offer agreements for the agreement. should be attended
and an acceptance allowances, by The consideration, by legal
of hospitality. which the husband as we know, may consequences. To
Nobody would agrees that he will consist either in my mind it would
suggest in pay to his wife a some right, be of the worst
ordinary certain sum of interest, profit or possible example
circumstances that money, per week, benefit accruing to to hold that
those agreements or per month, or one party, or some agreements such
result in what we per year, to cover forbearance, as this resulted in
know as a either her own detriment, loss or legal obligations
contract, and one expenses or the responsibility which could be
of the most usual necessary given, suffered or enforced in the
forms of expenses of the undertaken by the Courts. It would
agreement which household and of other. That is a mean this, that
does not constitute the children of the well-known when the husband

7
makes his wife a are not sued upon, Courts. The terms I think the
promise to give not because the may be judgment of the
her an allowance parties are repudiated, varied Court below was
of 30s. or 2l. a reluctant to or renewed as wrong and that
week, whatever he enforce their legal performance this appeal should
can afford to give rights when the proceeds or as be allowed.
her, for the agreement is disagreements Appeal allowed.
maintenance of broken, but develop, and the (G. A. S.)
the household and because the principles of the
children, and she parties, in the common law as to
promises so to inception of the exoneration and
apply it, not only arrangement, discharge and
could she sue him never intended accord and
for his failure in that they should satisfaction are
any week to be sued upon. such as find no
supply the Agreements such place in the
allowance, but he as these are domestic code.
could sue her for outside the realm The parties
non-performance of contracts themselves are
of the obligation, altogether. The advocates, judges,
express or common law does Courts, sheriff's
implied, which not regulate the officer and
she had form of reporter. In
undertaken upon agreements respect of these
her part. All I can between spouses. promises each
say is that the Their promises are house is a domain
small Courts of not sealed with into which the
this country would seals and sealing King's writ does
have to be wax. The not seek to run,
multiplied one consideration that and to which his
hundredfold if really obtains for officers do not
these them is that seek to be
arrangements natural love and admitted.
were held to result affection which *****
in legal counts for so little
obligations. They in these cold For these reasons