They made an agreement that Mrs. Balfour was to remain behind in England when the husband returned to Ceylon (Sri Lanka) and that Mr. Balfour would pay her 30 a month until he returned. 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. APPEAL from a decision of Sargant J., sitting as an additional judge of the King's Bench Division. Important Obiter That spouses could enter into contracts. Balfour v balfour-Merrit v merrit - Level: 4 Balfour v Balfour 1 Balfour gave rise to the aim of - Studocu fact of the cases and role of English court with regards to intention to create legal relation level: balfour balfour1 balfour gave rise to the aim of DismissTry Ask an Expert Ask an Expert Sign inRegister Sign inRegister Home Ask an ExpertNew And at later point of time they separated legally, that means they were divorced. 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 30l. 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. Facts of the case are- That the defendant (Mr Balfour) was an English Civil Servant who was posted on official duty in Ceylon, Sri Lanka. During his vacations in the year 1915, they came to England. 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. The claim was under contracts and not under the conjugal rights held by Mrs. Balfour. As with the case Balfour v Balfour [1919] 2 KB 571 the courts agreed since the . 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 parties were living together, the wife intending to return. The ordinary example is where two parties agree to take a walk together, or where there is an offer and an acceptance of hospitality. 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 plaintiff alleged that the defendant before returning to Ceylon entered into the above agreement. a month in consideration of her agreeing to support herself without . For collaborations contact mail.lawlex@gmail.com. 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 she could have made some other arrangements. Mr Balfour was a civil engineer, and worked for the Government as the Dire. The case of Balfour v. Balfour was primarily a case of English Law and gave rise to the doctrine of Legal Relationship as an essential in Contract law. CONCLUSION The agreement between the Balfours was not a legally enforceable contract but merely an ordinary domestic arrangement. Balfour v Balfour [1919] 2 KB 571 is a leading English contract law case. 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 parties subsequently divorced and an issue arose as to whether agreement was enforceable and soon after that Mrs. Balfour sued him for restitution of her conjugal rights and for alimony equal to the amount her husband had agreed to send. 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. a month I will agree to forego my right to pledge your credit. Living apart is a question of fact. If there be a separation in fact (except for the wife's guilt) the agency of necessity arises. The agreement here was a purely domestic arrangement intended to take effect until the wife should rejoin her husband. Then again it seems to me that it would be impossible to make any such implication. In Lush on Husband and Wife, 3rd ed., p. 404, it is stated that: "If the wife is living apart from her husband either (a) on account of the husband's misconduct, the wife being left without adequate means; (b) 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. 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 [579] is consideration in form within the definition that I have mentioned. In 1916 he went back to Ceylon, leaving her in England, where she had to remain temporarily under medical advice. 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. The Court of Appeal unanimously held that there was no enforceable agreement, although the depth of their reasoning differed. We respect your privacy and won't spam you, Copyright 2021 All Rights Reserved. The parties were living together, the wife intending to return. The parties themselves are advocates, judges, Courts, sheriff's officer and reporter. An agreement for separation when it is established does involve mutual considerations. Alchetron Merritt v Merritt (1970) Distinguished from Balfour v Balfour (1919) because spouses were separated when the deal was made, court considers deal binding. This was a claim without precedent and the lordships judgement will show how reluctant they were to extend the law of contacts into the area of matrimonial rights and duties, in which it had previously played very little part. b. Obiter is used to make up for the lack of situations in which a binding ratio decidendi can be formulated. In order for him to be able to continue to teach at a secondary level, he needed his teaching grade to . Q. or 2l. a month I will agree to forego my right to pledge your credit. Her doctor advised her to stay in England, because the climate in Ceylon would be detrimental to her health. 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. (after stating the facts). Balfour was a primary teacher in the Hawkes Bay, and in 1976 he transferred to secondary teaching. The couple subsequently divorced, and the claimant sued the defendant to enforce the maintenance agreement. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts. For these reasons I think the judgment of the Court below was wrong and that this appeal should be allowed. L.J. There is a presumption against intention to create legal relations in the context of marriage, A civil servant in Ceylon (D), moved with his wife (C) to England, When it came time to return to Ceylon, C had to stay due to ill health, with D promising to pay her $30 per month, Atkin LJ: there was no intention to create legal relations, Warrington LJ: the wife had provided no consideration, There are agreements which do not result in contract, such as taking a walk though there is offer and acceptance of hospitality, Arrangements between spouses, including agreements for allowances, commonly are not contract even though consideration might exist, It is impractical for the courts to enforce such agreements due to the heavy case load that would result, The parties never intended such agreement to be sued upon, The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts, The principles of the common law find no place in the domestic code, The onus is on C to prove that there was a contract but she has not discharged that burden. In March 1918, Mrs Balfour sued him to keep up with the monthly 30 payments. PROCEDURAL HISTORY An additional judge of Kings Bench Divisionpresided by Justice Sargant, held that the husband was under an obligation to support his wife and there exists a valid contract between the husband and the wife The lower court entered judgment in favour of the plaintiff and held that the defendants promise to send money was enforceable The consent of the wife to this arrangement of monthly transfer was a valid consideration to constitute a binding contract between the parties. In July she got a decree nisi and in December she obtained an order for alimony. 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. 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. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator's award. Case: Balfour v Balfour [1919] 2 K.B. This was a claim without precedent and the lordships judgement will show how reluctant they were to extend the law of contacts into the area of matrimonial rights and duties, in which it had previously played very little part. 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. This case considered whether there was an intention to create legal relations when a married couple entered into an arrangement pursuant to which the husband would pay his wife money while they were living separately as a result of illness. It would mean this, that when the husband makes his wife a promise to give her an allowance of 30s. 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. Agreements such as these are outside the realm of contracts altogether. The alleged agreement was entered into under the following circumstances. The common law does not regulate the form of agreements between spouses. While they were there, Mrs Balfours doctor advised that she should not return to Ceylon due to her arthritis. But we have to see whether here is evidence of any such exchange of promises as would make the promise of the husband the basis of an agreement. 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. It would mean this, that when the husband makes his wife a promise to give her an allowance of 30s. 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. Mrs Balfour sued, stating that Mr Balfour had a legal obligation (under contract) to continue paying her the 30 a month. Balfour is a climacteric case in contract law which pioneered the doctrine of 'Intentions to Create Legal Relations'. 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. Rambling tutors, 9am lectures, 40 textbooks? (N. S.) 628, which was affirmed in the decision of Debenham v Mellon (1880) 6 App. 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. I think the judgment of Sargant J. cannot stand, the appeal ought to be allowed and judgment ought to be entered for the defendant. Mr Balfour was a civil engineer who worked in Ceylon (modern-day Sri Lanka). The defendant promised to pay the claimant a sum of money each month in return for her agreeing to support herself in England without calling on him for more money. Citations: [1919] 2 KB 571; [1918-19] All ER Rep 860; (1919) 88 LJKB 1054; (1919) 121 LT 346; (1919) 35 TLR 609. Ceylon, leaving her in England, because the climate in Ceylon would be to... The climate in Ceylon ( modern-day Sri Lanka ) of 30s under contract ) to continue to teach a! To forego my right to pledge your credit would be impossible to make up for the Government as Dire! Of agreements between spouses legal obligation ( under contract ) to continue paying her the 30 a month will. Agreement, although the depth of their reasoning differed, where she had to remain temporarily under medical.... By Mrs. Balfour her husband, Copyright 2021 All rights Reserved a month lack of situations which. Ordinary domestic arrangement had to remain temporarily under medical advice in July she got a decree nisi in! 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