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325 of 699 DOCUMENTS

Combe v Combe

COURT OF APPEAL

[1951] 2 KB 215, [1951] 1 All ER 767, 211 LT 333, 215 LT 184, [1951] WN 198

HEARING-DATES: 6 MARCH 1951

6 MARCH 1951

CATCHWORDS:
Contract - Consideration - Undertaking by divorced husband to pay allowance to wife - No request that wife should
abstain from applying for maintenance order.
Divorce - Maintenance - Undertaking by husband to pay yearly allowance - No application by wife to apply for
order for maintenance - Enforcement of undertaking.

HEADNOTE:
On 1 February 1943, a wife obtained a decree nisi for divorce against her husband. On 9 February her solicitors
wrote to the husband's solicitors asking them to confirm that with regard to permanent maintenance the husband was
prepared to make the wife an allowance of £ 100 a year free of income tax. On 19 February the husband's solicitors
replied that he had agreed to allow her that sum. On 11 August 1943, the decree absolute was made. The husband did
not make any of the agreed payments, and the wife did not apply to the court for an order for permanent maintenance.
On 28 July 1950, the wife brought an action against the husband claiming the amount of the arrears on the ground that
she was entitled to them under the husband's promise.
Held - (i) in the absence of proof of any request, express or implied, by the husband that the wife should forbear
from applying to the court for maintenance, there was no consideration for the husband's promise, and, therefore, it was
not enforceable at the suit of the wife.
Central London Property Trust Ltd v High Trees House Ltd ([1947] KB 130), explained and distinguished.
(ii) even if, in return for the husband's promise, the wife had promised to forbear from applying to the court for
maintenance, there would have been no consideration for the husband's promise because the wife's promise would not
be binding on her and would not preclude her from applying to the court.
Hyman v Hyman ([1929] AC 601) and Gaisberg v Storr ([1949] 2 All ER 411), applied.
Decision of Byrne J ([1950] 2 All ER 1115), reversed.

NOTES:
As to a Wife not applying for Maintenance, see Halsbury, Hailsham Edn, Vol 10, p 793, para 1257; and for Cases,
see Digest, Vol 27, p 326, Nos 3044, and 2nd Digest Supp.
As to Valuable Consideration to a Contract, see Halsbury, Hailsham Edn, Vol 7, pp 136-138, paras 195-197.

CASES-REF-TO:
Gaisberg v Storr [1949] 2 All ER 411, [1950] 1 KB 107, 2nd Digest Supp.
Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130, [1947] LJR 77, 175 LT 332, 2nd
Digest Supp.
Robertson v Minister of Pensions [1948] 2 All ER 767, [1949] 1 KB 227, [1949] LJR 323, 2nd Digest Supp.
Hughes v Metropolitan Ry Co (1877), 2 App Cas 439, 46 LJQB 583, 36 LT 932, 42 JP 421, 21 Digest 310, 1137.
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[1951] 2 KB 215, [1951] 1 All ER 767, 211 LT 333, 215 LT 184, [1951] WN 198

Birmingham and Digest Land Co v London & North Western Ry Co (1888), 40 ChD 268, 60 LT 527, 11 Digest
214, 990.
Re Porter (William) & Co Ltd [1937] 2 All ER 361, Digest Supp.
Buttery v Pickard (1946), 174 LT 144, 2nd Digest Supp.
Ledingham v Bermejo Estancia Co Ltd, Agar v Bermejo Estancia Co Ltd [1947] 1 All ER 749, 2nd Digest Supp.
Foster v Robinson [1950] 2 All ER 342, [1951] 1 KB 149.
Charles Rickards Ltd v Oppenheim [1950] 1 All ER 420, [1950] 1 KB 616.
J F Perrott & Co Ltd v Cohen [1950] 2 All ER 939.
Hyman v Hyman [1929] AC 601, 98 LJP 81, 141 LT 329, 93 JP 209, Digest Supp.
Wigan v English and Scottish Law Life Assurance Assocn [1909] 1 Ch 291, 78 LJCh 120, 100 LT 34, 12 Digest
212, 1701.
Oliver v Davis [1949] 2 All ER 353, [1949] 2 KB 727, [1949] LJR 1661, 2nd Digest Supp.
Scott v Scott [1921] P 107, 90 LJP 171, 124 LT 619, 27 Digest 510, 5486.
Fisher v Fisher [1942] 1 All ER 438, [1942] P 101, 111 LJP 28, 166 LT 225, 2nd Digest Supp.
Hasting v Hasting [1947] 2 All ER 744, [1948] P 68, [1948] LJR 119, 2nd Digest Supp.
Emanuel v Emanuel [1945] 2 All ER 494, [1946] P 115, 114 LJP 60, 173 LT 118, 2nd Digest Supp.

INTRODUCTION:
Appeal
Appeal by the husband from an order of Byrne J dated 10 November 1950, and reported [1950] 2 All ER 1115,
whereby he held that the husband was liable to pay to the wife the sum of £ 600, being arrears of payments, which had
accrued within six years before action brought, under an agreement whereby the husband undertook to make his wife by
way of permanent maintenance an allowance of £ 100 a year free of income tax. The learned judge had found that,
although the agreement was not supported by consideration, the husband's promise was enforceable because it was an
unequivocal acceptance of liability, which was intended to be binding and to be acted on, and was, in fact, acted on by
the wife. The facts are fully stated in the judgment of Denning LJ.

COUNSEL:
Kee for the husband; P A G Rawlinson for the wife.

JUDGMENT-READ:
6 March 1951. The following judgments were delivered.

PANEL: ASQUITH, DENNING AND BIRKETT LJJ

JUDGMENTBY-1: ASQUITH LJ.

JUDGMENT-1:
ASQUITH LJ.:
I will ask Denning LJ, to deliver the first judgment.

JUDGMENTBY-2: DENNING LJ.

JUDGMENT-2:
DENNING LJ.:
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[1951] 2 KB 215, [1951] 1 All ER 767, 211 LT 333, 215 LT 184, [1951] WN 198

In this case a wife who has divorced her husband claims maintenance from him-not in the Divorce Court, but in the
King's Bench on an agreement which is said to be embodied in letters. The parties were married in 1915. They separated
in 1939. On 1 February 1943, on the wife's petition, a decree nisi of divorce was pronounced. Shortly afterwards letters
passed between the solicitors with regard to maintenance. On 9 February 1943 (eight days after the decree nisi), the
solicitor for the wife wrote to the solicitor for the husband:
"With regard to permanent maintenance, we understand that your client is prepared to make [the wife] an allowance
of £ 100 per year free of income tax."
In answer, on 19 February 1943, the husband's solicitors wrote:
"The respondent has agreed to allow your client £ 100 per annum free of tax."
On 11 August 1943, the decree was made absolute. On 26 August 1943, the wife's solicitors wrote to the husband's
solicitors, saying:
"Referring to your letter of Feb. 19 last, our client would like the £ 100 per annum agreed to be paid to her by your
client to be remitted to us on her behalf quarterly. We shall be glad if you will kindly let us have a cheque for £ 25 for
the first quarterly instalment and make arrangements for a similar remittance to us on Nov. 11, Feb. 11, May 11, and
Aug. 11 in the future."
A reply did not come for nearly two months because the husband was away, and then he himself, on 18 October
1943, wrote a letter which was passed on to the wife's solicitors:
"... regarding the sum of £ 25 claimed on behalf of Mrs. Combe ... I would point out that whilst this is paid
quarterly as from Aug. 11, 1943, the sum is not due till Nov. 11, 1943, as I can hardly be expected to pay this allowance
in advance."
He never paid anything. The wife pressed him for payment, but she did not follow it up by an application to the
divorce court. It is to be observed that she herself has an income of her own of between £ 700 and £ 800 a year, whereas
her husband has only £ 650 a year. Eventually, after nearly seven years had passed since the decree absolute, she
brought this action in the King's Bench Division on 28 July 1950, claiming £ 675 being arrears for six years and three
quarters at £ 100 a year. Byrne J held that the first three quarterly instalments of £ 25 were barred by the Limitation Act,
1939, but he gave judgment for £ 600 in respect of the instalments which accrued within the six years before the action
was brought. He held, on the authority of Gaisberg v Storr, that there was no consideration for the husband's promise to
pay his wife £ 100, but, nevertheless, he held that the promise was enforceable on the principle stated in Central London
Property Trust Ltd v High Trees House Ltd and Robertson v Minister of Pensions, because it was an unequivocal
acceptance of liability, intended to be binding, intended to be acted on, and, in fact, acted on.
Much as I am inclined to favour the principle of the High Trees case, it is important that it should not be stretched
too far lest it should be endangered. It does not create new causes of action where none existed before. It only prevents a
party from insisting on his strict legal rights when it would be unjust to allow him to do so, having regard to the dealings
which have taken place between the parties. That is the way it was put in the case in the House of Lords which first
stated the principle-Hughes v Metropolitan Ry Co-and in the case in the Court of Appeal which enlarged it-Birmingham
and District Land Co v London & North Western Ry Co. It is also implicit in all the modern cases in which the principle
has been developed. Sometimes it is a plaintiff who is not allowed to insist on his strict legal rights. Thus, a creditor is
not allowed to enforce a debt which he has deliberately agreed to waive if the debtor has carried on business or in some
other way changed his position in reliance on the waiver: Re Porter (William) & Co Ltd, Buttery v Pickard, Central
London Property Trust Ltd v High Trees House Ltd, Ledingham v Bermejo Estancia Co Ltd, Agar v Bermejo Estancia
Co Ltd. A landlord who has told his tenant that he can live in his cottage rent free for the rest of his life is not allowed to
go back on it if the tenant stays in the house on that footing: Foster v Robinson. Sometimes it is a defendant who is not
allowed to insist on his strict legal rights. His conduct may be such as to debar him from relying on some condition,
denying some allegation, or taking some other point in answer to the claim. Thus, a government department, who had
accepted a disease as due to war service, were not allowed afterwards to say it was not, when the soldier, in reliance on
the assurance, had abstained from getting further evidence about it: Robertson v Minister of Pensions. A buyer who had
waived the contract date for delivery was not allowed afterwards to set up the stipulated time as an answer to the seller:
Charles Rickards Ltd v Oppenheim. A tenant who had encroached on an adjoining building, asserting that it was
comprised in the lease, was not allowed afterwards to say that it was not included in the lease: J F Perrott & Co Ltd v
Cohen. A tenant who had lived in a house rent free by permission of his landlord, thereby asserting that his original
tenancy had ended, was not afterwards allowed to say that his original tenancy continued: Foster v Robinson. In none of
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these cases was the defendant sued on the promise, assurance, or assertion as a cause of action in itself. He was sued for
some other cause, for example, a pension or a breach of contract, or possession, and the promise, assurance, or assertion
only played a supplementary role, though, no doubt, an important one. That is, I think, its true function. It may be part
of a cause of action, but not a cause of action in itself. The principle, as I understand it, is that where one party has, by
his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between
them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who
gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such
promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which
he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word.
Seeing that the principle never stands alone as giving a cause of action in itself, it can never do away with the
necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too
firmly fixed to be overthrown by a side-wind. Its ill effects have been largely mitigated of late, but it still remains a
cardinal necessity of the formation of a contract, although not of its modification or discharge. I fear that it was my
failure to make this clear in Central London Property Trust Ltd v High Trees House Ltd which misled Byrne J in the
present case. He held that the wife could sue on the husband's promise as a separate and independent cause of action by
itself, although, as he held, there was no consideration for it. That is not correct. The wife can only enforce the promise
if there was consideration for it. That is, therefore, the real question in the case: Was there sufficient consideration to
support the promise?
If it were suggested that, in return for the husband's promise, the wife expressly or impliedly promised to forbear
from applying to the court for maintenance-that is, a promise in return for a promise-there would clearly be no
consideration because the wife's promise would not be binding on her and, therefore, would be worth nothing.
Notwithstanding her promise, she could always apply to the divorce court for maintenance-perhaps, only with leave-but
nevertheless she could apply. No agreement by her could take away that right: Hyman v Hyman, as interpreted by this
court in Gaisberg v Storr. There was, however, clearly no promise by the wife, express or implied, to forbear from
applying to the court. All that happened was that she did, in fact, forbear-that is, she did an act in return for a promise. Is
that sufficient consideration? Unilateral promises of this kind have long been enforced so long as the act or forbearance
is done on the faith of the promise and at the request of the promisor, express or implied. The act done is then in itself
sufficient consideration for the promise, even though it arises ex post factor, as Parker J pointed out in Wigan v English
and Scottish Law Life Assurance Assocn [1909] 1 Ch 298). If the findings of Byrne J are accepted, they are sufficient to
bring this principle into play. His finding that the husband's promise was intended to be binding, intended to be acted
on, and was, in fact, acted on-although expressed to be a finding on the principle of the High Trees House case-is
equivalent to a finding that there was consideration within this long-settled rule, because it comes to the same thing
expressed in different words: see Oliver v Davis. My difficulty, however, is to accept the findings of Byrne J that the
promise was "intended to be acted on." I cannot find any evidence of any intention by the husband that the wife should
forbear from applying to the court for maintenance, or, in other words, any request by the husband, express or implied,
that the wife should so forbear. He left her to apply, if she wished to do so. She did not do so, and I am not surprised,
because it is very unlikely that the divorce court would have made any order in her favour, since she had a bigger
income than her husband. Her forbearance was not intended by him, nor was it done at his request. It was, therefore, no
consideration
It may be that the wife has suffered some detriment because, after forbearing to apply to the court for seven years,
she might not now get leave to apply: Scott v Scott. The court, however, is, nowadays much more ready to give leave
than it used to be: Fisher v Fisher; Hasting v Hasting; and I should have thought that, if the wife fell on hard times, she
would still get leave. Assuming, however, that she has suffered some detriment by her forbearance, nevertheless, as the
forbearance was not at the husband's request, it is no consideration. In Scott v Scott, where a maintenance agreement
was made during divorce proceedings, Scrutton LJ said ([1921] P 127) that he had no doubt about there being
consideration for it, but this must now be taken to be erroneous, having regard to Hyman v Hyman and Gaisberg v
Storr.
The doctrine of consideration is sometimes said to work injustice, but I see none in this case, nor was there any in
Oliver v Davis or Gaisberg v Storr. I do not think it would be right for this wife, who is better off than her husband, to
take no action for six or seven years and then demand from him the whole £ 600. The truth is that in these maintenance
cases the real remedy of the wife is, not by action in the King's Bench Division, but by application in the Divorce Court.
I have always understood that no agreement for maintenance, which is made in the course of divorce proceedings prior
to decree absolute, is valid unless it is sanctioned by the court-indeed, I said so in Emanuel v Emanuel ([1945] 2 All ER
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496). I know that such agreements are often made, but their only valid purpose is to serve as a basis for a consent
application to the court. The reason why such agreements are invalid, unless approved, is because they are so apt to be
collusive. Some wives are tempted to stipulate for extortionate maintenance as the price of giving their husbands their
freedom. It is to remove this temptation that the sanction of the court is required. It would be a great pity if this salutory
requirement could be evaded by taking action in the King's Bench Division. The Divorce Court can order the husband to
pay whatever maintenance is just. Moreover, if justice so requires, it can make the order retrospective to decree
absolute. That is the proper remedy of the wife here, and I do not think she has a right to any other. For these reasons I
think the appeal should be allowed.

JUDGMENTBY-3: BIRKETT LJ.

JUDGMENT-3:
BIRKETT LJ.:
I agree. There were two points before the learned judge, both clearly stated and both clearly argued. The first one,
namely, whether there was consideration for the agreement to pay £ 100 a year free of tax, was disposed of by the
learned judge almost in a sentence. He said ([1950] 2 All ER 1117) that on the authority of Gaisberg v Storr there could
be no doubt that the decision in that case applied to the facts of the case before him, and that there it was held that the
only consideration moving from the wife for the husband's undertaking which could be deduced by inference from the
circumstances was an undertaking by the wife not to apply to the court for alimony pendente lite or for permanent
maintenance, but that any promise by the wife to refrain from so applying was void and unenforceable. The learned
judge continued (ibid):
"At first sight that would appear to be conclusive, but counsel for the wife pointed out that the whole matter to
which the court was directing its attention in Gaisberg v. Storr was whether forbearance to apply for permanent
maintenance was good consideration ... In the present case, however, counsel for the wife says that it is not suggested
that there was an implied term that the wife would not apply for permanent maintenance in consideration of the
husband's making her an allowance of £ 100 a year."
I have been looking at the evidence which was given in the court below. The agreement was made in February,
1943, and the decree absolute was not made until 11 August. There does not appear any evidence of a request by the
husband that the wife should refrain from going to the court, or a promise by the wife that she would not go to the court,
or any matter of that kind. It appears simply to have been that after some talk in February, 1943, an agreement was
arrived at that the husband would pay £ 100 a year free of tax. It seems on the first point, therefore, that there was no
consideration for this agreement. I will quote the words of Asquith LJ in Gaisberg v Storr ([1949] 2 All ER 415):
"The only consideration which can be deduced by inference from the circumstances would be an undertaking by the
wife, in exchange for the husband's undertaking, not to apply to the court for alimony pendente lite or permanent
maintenance, but any promise given by her to refrain from so applying would have been void and unenforceable on the
principle laid down in Hyman v. Hyman. In those circumstances I think that there is no evidence of any consideration
moving from the wife to the husband and that the agreement in the document is not a binding contract."
The learned judge in the court below dismissed this matter in a sentence by saying that the law was so clear that it
was not possible for the case to be argued on that ground.
With regard to the second point, we have had the great advantage of hearing Denning LJ deal with Central London
Property Trust Ltd v High Trees House Ltd and Robertson v Minister of Pensions which formed such a prominent part
of the judgment of the court below. I am bound to say that reading them for myself I think the description which was
given by counsel for the husband in this court, namely, that the doctrine there enunciated was, so to speak, a doctrine
which would enable a person to use it as a shield and not as a sword, is a very vivid way of stating what, I think, is the
principle underlying both those cases. Denning J in Central London Property Trust Ltd v High Trees House Ltd
concluded his judgment with these words ([1947] KB 136):
"I prefer to apply the principle that a promise intended to be binding, intended to be acted on and in fact acted on, is
binding so far as its terms properly apply."
If a husband who had entered into an agreement of this kind was to try to take advantage of it, I think the doctrine
would then apply, but, so far as the wife is concerned, her right to apply to the court for maintenance is still,
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theoretically, in full force, because I see that in Fisher v Fisher Lord Greene MR dealing with Scott v Scott, which had
formed such a prominent part in the argument, said ([1942] 1 All ER 441):
"... SCRUTTON, L.J., expressed his conclusion ([1921] P. 126): 'Without going through the other cases, seven or
eight of which I have referred to while counsel have been arguing this case, I think in this particular case the application
ought to have been made within a reasonable time after the decree for dissolution; and I see nothing whatever in the
circumstances of this case to justify an application being made seven years after the decree.' He carefully refrained from
saying that in any circumstances seven years would have been too long. WARRINGTON, L.J., is equally cautious in the
language which he used. In my view that authority does not in any way preclude us from saying that, on the facts of any
particular case, a reasonable time may be as much as seven years, or even more."
It was said in the course of the argument of counsel for the husband that, if an application was made to the court at
this date for maintenance, it would be necessary to explain the long delay in the making of the application. As one of the
material circumstances for the court to consider, I cannot conceive of a better ground to be put forward by the wife than
that mistakenly she had relied on an agreement which was to fulfil for her all that she could ever hope to acquire by
making an application for maintenance, but, much to her surprise, when that agreement came before the court, it was
held to be invalid. In those circumstances I agree with the judgment which has been given and I agree with its
conclusion. The learned judge was certainly right in saying that there was no consideration for the agreement, and I
think he misunderstood and misapplied the principles in Central London Property Trust Ltd v High Trees House Ltd
and Robertson v Minister of Pensions. For those reasons I think the appeal ought to be allowed.

JUDGMENTBY-4: ASQUITH LJ.

JUDGMENT-4:
ASQUITH LJ.:
I agree. The learned judge decided that while the husband's promise was unsupported by any valid consideration,
yet the principle in Central London Property Trust Ltd v High Trees House Ltd entitled the wife to succeed, it is
unnecessary to express any view as to the correctness of the decision in the High Trees case, although I certainly must
not be taken to be questioning it. I would, however, remark in passing that it seems to me a complete misconception to
suppose that it struck at the roots of the doctrine of consideration. Assuming, without deciding, that it is good law, I do
not think it helps the wife at all. What that case decides is that when a promise is given which (i) is intended to create
legal relations, (ii) is intended to be acted on by the promisee, and (iii) is, in fact, so acted on, the promisor cannot bring
an action against the promisee which involves the repudiation of his promise or is inconsistent with it. It does not, as I
read it, decide that a promisee can sue on the promise. Denning J expressly states the contrary. Neither in the High
Trees case nor in Robertson v Minister of Pensions (another decision of my Lord which is relied on by the plaintiff) was
an action brought by the promisee on the promise. In the first of those two cases the plaintiff was, in effect, the promisor
or a person standing in the shoes of the promisor, while in the second the action, although brought by the promisee, was
brought on a cause of action which was not the promise, but was an alleged statutory right.
It is said for the wife that the husband's agreement to pay £ 100 a year was supported by good consideration, which
consisted either of an implied undertaking by the wife not to apply to the court for an order for permanent maintenance
or of an actual forbearance so to apply. As to the first of these, if the agreement was made before the decree absolute,
Hyman v Hyman, beyond question, decided that such an agreement to abstain from resorting to the court is not valid
consideration. It is said, however, first, that the material agreement was not made before the decree absolute, but was
made after, and that such an agreement made after the decree absolute is not open to objection and is made for valid
consideration. Alternatively, it is argued that, even if such an agreement is not good consideration, an actual forbearance
to apply to the court is good consideration
As to the first of these points, the material agreement was made shortly after the decree nisi and long before the
decree absolute, by the letters of 9 and 19 February 1943. The correspondence after the decree absolute is merely a
request by the wife that an agreement, assumed to have been validly made in the previous February, shall be carried out
by means of quarterly payments, followed by a consent by the husband to pay quarterly with a suggestion of different
quarter days. This cannot, in my view, constitute a contract made after the decree absolute, but, if it were so, I consider
on the whole that Hyman v Hyman (a decision of the House of Lords) is not to be construed as applying only to
agreements made before decree absolute. I think its application is general. It contains no such limitation in time as has
been suggested. I am of opinion, further, that Hyman v Hyman is incidentally inconsistent with the dicta of Scrutton LJ
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[1951] 2 KB 215, [1951] 1 All ER 767, 211 LT 333, 215 LT 184, [1951] WN 198

in Scott v Scott. Finally, I do not think an actual forbearance, as opposed to an agreement to forbear to approach the
court, is a good consideration unless it proceeds from a request, express or implied, on the part of the promisor. If not
moved by such a request, the forbearance is not in respect of the promise. For these reasons and the others given by my
Lords, I agree that the appeal should be allowed.

DISPOSITION:
Appeal allowed with costs.

SOLICITORS:
Braikenridge & Edwards (for the husband); Lee & Pembertons (for the wife).