932 GA. 1967 Northrop Northrop Dirtock LJ. HL E)* 1967 Api. 18,19, 20, 24, 253) June 2 [1967] 3 WLR. THE WEEKLY LAW REPORTS Aus. 4, 1967 by how much the direct or indirect expenses incurred by the wife in feeding, clothing and housing the child, and the loss of earnings sustained by her by reason of the necessity for her to tend the child, exceed the weekly sum of £2 which they have awarded under section 2 (1) (h). The amount of this excess, provided it is reason- able having regard to the means of the husband, is the amount which he should be ordered to pay to the wife under section 2 (1) (6) in respect of his failure to provide reasonable maintenance for the child. Appeal dismissed. No order for costs. Case remitted to the justices for further findings of fact and their answers to questions by the court set out at end of judgment of Winn LJ. Solicitors: Vizard, Oldham, Crowder & Cash and Robertson, Martin & Co. for Wild, Hewitson & Shaw, Cambridge; Jaques & Co. for Rhodes, Thain & Thomas, Halifax, HJ. [House oF Lorps] BESWICK. . . . . . se APPELLANT AND BESWICK. . . . . . «~~ ‘RESPONDENT Contract—Parties—hird party, enforcement by—Procedure—Agree- ‘ment for transfer of business—Consideration from transferee including promise to pay annuity to widow of transferor—Repudi- ation by transferee after death of transferor—Whether promise enforceable by widow as administratrix for recovery of all arrears and continuing payments for herself in personal capacity— Whether action maintainable at law for benefit of third party— Whether remedy of specific performance of agreement for pay- ‘ment of money available—Whether third person not named in agreement may sue for “ benefit of agreement . . . respecting . . . property” —Law of Property Act, 1925 (15 Geo. 5, c. 20), ss. 56, 205 (1) (xn). Specific Performance—Contract to pay money—Enforcement by third party—RS.C., Ord. 42, r. 26. By section 56 (1) of the Law of Property Act, 1925: “A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other. property, although.he may not be named as a party to the conveyance or other instrument. . . .” * Present: Lonp Ret, Lorp Hopson, Lop Guest, Lonp PEARCE and Lorp UPsoHN.Ava. 4, 1967 THE WEEKLY LAW REPORTS [1967] 3 W.LR. By section 205 (1): “In this Act unless the context otherwise requires, the follow- ing expressions have the meanings hereby assigned to them respectively, that is to sa (x) “Property” includes any thing in action, and any interest in real or personal property: ...” By an agreement in writing made in March, 1962, P. B., then aged over 70 and in poor health, agreed with his nephew, the defendant, that he would transfer to the nephew the goodwill and trade utensils of his coal round business in consideration of the nephew's employing him as consultant at £6 10s. a week for the rest of his life; and by clause 2 the nephew agreed for the same consideration to pay to P. B.’s wife after his death an annuity charged on the business at the rate of £5 a week for life P, B.'s wife was not a party to the agreement. The nephew took over the business and in November, 1963, P. B. died. The nephew paid one sum of £5 to the widow, then aged 74 and in poor health, but refused to pay any further sum. The widow, having taken out letters of administration to her late husband's estate, brought an action against his nephew in her capacity as adminis- tratrix and also in her personal capacity asking (inter alia) for specific performance of the agreement. Held, that the widow, as administratrix of a party to the con- tract was entitled to an order for specific performance of the promise made by the nephew and was not limited to recovering merely nominal damages on the basis of the loss to the estate. Held, further (Lord Upjohn dubitante), that the widow was not entitled to enforce the obligation in her personal caps since section 56 of the Act of 1925, which was a consolidation ‘Act, did not effect a fundamental change in the law so as to allow a third party, not a party to a contract, to enforce it, and the context of the section excluded the application of the definition of “ property” in section 205 (1). Tweddle v. Atkinson (1861) 1 B. & S, 393; Dunlop Pneumatic Tyre Co. Lid. V. Selfridge & Co. Lid. [1915] A.C. 847; 31 TLR. 399 H.L.(B.); White v. Bijou Mansions Ltd. [1937] Ch. 610; 53 TLR. 88; [1937] 3 All E.R. 269; [1938] Ch. 351; 54 T.LR. 458; [1938] 1 'AI E.R. 546 C.A.; In re Schebsman [1944] Ch. 83; 60 TLR. 128; [1943] 2 All E.R. 768 C.A.; In re Miller's Agree~ ‘ment [1947] Ch. 615; [1947] 2 All ER. 78 applied. Decision of the Court of Appeal [1966] Ch. 538; [1966] 3 WLR. 396; [1966] 3 All ERR. 1, C.A. affirmed in part. Appeat from the Court of Appeal (Lord Denning M.R., Danck- werts and Salmon L.JJ.). This was an an appeal, by leave of the House of Lords, by the appellant John Joseph Beswick, who was the defendant in this action, from an order of the Court of Appeal dated June 22, 1966, whereby the judgment of Burgess V.-C. made in the Chancery of the County Palatine of Lancaster (Manchester District) dated October 11, 1965, was discharged and it was declared that. an agreement dated March 14, 1962, made between the appellant and Peter Beswick, the deceased husband of the respondent Ruth Beswick, the plaintiff in the action (suing personally and as administratrix of the estate of Peter Beswick), ought to be specific- ally performed and carried into execution and it was ordered and adjudged accordingly, and it was ordered that the appellant do 933 HL) 1967 ‘Beswick Beswick[1967] 3 W.LR. THE WEEKLY LAW REPORTS Aus. 4, 1967 pay to the respondent £175 being the arrears of the annuity mentioned in clause 2 of the agreement accrued due at the date of the issue of the writ in the action, namely, July 15, 1964, and it was ordered that the appellant do pay to the respondent for the remainder of her life from July 15, 1964, an-annuity at the rate of £5 a week in accordance with the agreement. The facts are set out in their Lordships’ opinions. C. A. Settle Q.C. and J. FitzHugh for the appellant. Hugh Francis Q.C. and D. G. Nowell for the respondent, The following authorities, besides those referred to in their Lordships’ opinions, were cited in argument: Mortimer v. Capper’; Jackson. v. Lever*; Brough v. Oddy*; Waters v. Monarch Fire & Life Assurance Co.*; Castellain v. Preston®, Kenney v. Employers’ Liability Assurance Corporation®; Strom- dale & Ball Ltd. v. Burden"; and Green v. Russell. ‘Their Lordships took time for consideration. June 29. Lorp Ret. My Lords, before 1962 the respondent's deceased husband’ carried on business as a coal merchant. By agreement of March 14, 1962, the assigned to his nephew, the appellant, the assets of the business and the appellant undertook first to pay to him’£6 10s. per week for the remainder of his life and then to pay to the respondent an annuity of £5 per week in the event of her husband’s death. The husbaid died in November, 1963. Thereupon, the appellant made one payment of £5 to the respondent but he refused to make any further payment to her. The respondent now sues for £175 arrears of the annuity and for an onder for specific performance of the continuing obligation to pay the annuity. The Vice-Chancellor of the County Palatine of Lancaster decided-against the respondent but the Court of Appeal reversed this decision and, besides ordering payment of the arrears, ordered the appellant to pay to the respondent for the remainder of her life an annuity of £5 per week in accordance with the agreement. It so happens that the respondent is administratrix of the estate of her deceased husband and she sues both in that capacity and in her personal capacity. So it is necessary to consider her rights in each capacity. For clarity I think it best to begin by considering a simple case where, in consideration of a'sale by A to B, B agrees to pay the price of £1,000 to a third party X. Then the first question appears to me to be whether the parties intended that X should receive the money simply as A’s riominee so that he would hold the money § (1782) 1 Bro.C.C, 156. T [1952] Ch. 223; [1951] 2 TLR. 2 (1792) 3 Bro.C.C. 605, 1192; (1952) "1 AN ER, 59, 3 (1829) 1 Russ, & M, 55. 8"[1959] 2 Q.B, 326; [i959] 3 « (1856) 5 El. & B. 870. WLR. 17; [1959] 2A ER, 525, 5.(1883) 11 Q.B.D. 380, GA. GAS © [1901] 1 IR. 301.AUG. 4, 1967 THE WEEKLY LAW REPORTS [1967] 3. WLR. for behoof of A and be accountable to him for it, or whether the parties intended that X should receive the money for his own behoof and be entitled to keep it. That appears to me to be a question of construction of the agreement read in light of all the circumstances which were known to the parties. There have been several decisions involving this question. I am not sure that any conflicts with the view which I have expressed: but if any does, for example, In re Engelbach’s Estate, 1 would not agree with it. T think that Jn re Schebsman® was rightly decided and that the reasoning of Uthwatt J.* and the Court of Appeal supports what I have just said. In the present case I think it clear that the parties to the agreement intended that the respondent should receive the weekly sums of £5 in her own behoof and should not be account- able to her deceased husband's estate for them. Indeed the contrary was not argued. Reverting to my simple example the next question appears to me to be: Where the intention was that X should keep the £1,000 as his own, what is the nature of B’s obligation and who is entitled to enforce it? It was not argued that the law of England regards B's obligation as a nullity, and I have not observed in any of the authorities any suggestion that it would be a nullity. There may have been a time when the existence of a right depended on whether there was any. means of enforcing it, but today the law would be sadly deficient if one found that, although there is a right, the law provides no means-for enforcing it. So this obligation of B must be enforceable either by X or by A. I shall leave aside for the moment the question whether section 56 (1) of. the Law of Property Act, 1925, has any application to such a case, and consider the position at common law. Lord Denning’s view, expressed in this case not for the first time, is that X could enforce this obligation, But the view more commonly held in recent times has been that such a contract confers no right on X and that X could not sue for the £1,000. Leading counsel for the respondent based his case on other grounds, and as I agree that the respondent succeeds on other grounds, this would not be an appropriate case in which to solve this question. tis true that a strong Law Revision Committee recommended so long ago as 1937 (Cmd. 5449): “That where a contract by its express terms purports to confer a benefit directly on a third party it shall be enforceable by the third party in his own name .. .” (p. 31). And, if one had to contemplate a further long period of Parlia- mentary procrastination, this House might find it necessary to deal with this matter, But if legislation is probable at any early date I would not deal with it in a case where that is not essential. So for the purposes of this case I shall proceed on the footing that the commonly accepted view is right. 1 [1924] 2. Ch. 348, 3 [1943] Ch. 366; 59 TLR. 443; 2 [1944] Ch. 83; 60 TLR. 128; [1943] 2 Al ER. 387. 1943} 2 AMER 768) CA. 935 HL.) 1967 Beswick Loap Reto936 [1967] 3 WLR. THE WEEKLY LAW REPORTS Avo. 4, 1967 HL.) What then is A’s position? I assume that A has not made 1961__ himself a trustee for X, because it was not argued in this appeal that any trust had been created. So, if X has no right, A can at Bescick any time grant a discharge to B or make some new contract with Loss Re B: If there were a trust the position would be different. X would SMP have an equitable right and A would be entitled and, indeed, bound to recover the money and account for it to X. And A would have no right to grant a discharge to B. If there is no trust and A wishes to enforce the obligation, how does he set about it? He cannot sue B for the £1,000 because under the contract the money is not payable to him, and, if the contract were performed according to its terms, he would never have any right to get the money. So he must seek to make B pay X. The argument for the appellant is that A’s only remedy is to sue B for damages for B’s breach of contract in failing to pay the £1,000 to X. Then the ‘appellant says that A can only recover nominal damages of 40s. because the fact that X has not received the money will generally cause no loss to A: he admits that there may be cases where A would suffer damage if X did not receive the money but says that the present is not such a case. Applying what I have said to the circumstances of the present case, the respondent in her personal capacity has no right to sue, but she has a right as administratrix of her husband’s estate to Tequire the appellant to perform his obligation under the agree- ment. He has refused to do so and he maintains that the respon- dent's only right is to sue him for damages for breach of his contract. If that were so, I shall assume that he is right in main- taining that the administratrix could then only recover nominal damages because his breach of contract has caused no loss to the estate of her deceased husband. If that were the only remedy available the result would be grossly unjust. It would mean that the appellant Keeps the business which he bought and for which he has only paid a small part of the price which he agreed to pay. He would avoid paying the rest of the price, the annuity to the respondent, by paying a mere 40s. damages. ‘The respondent's first answer is that the common law has been radically altered by section -56 (1) of the Law of Property: Act, 1925, and that that section entitles her to sue in her personal capacity and recover the benefit provided for her in the agreement although she was not a party to it. Extensive alterations of the law were made at that time but it is necessary to examine with some care the way in which this was done. ‘That Act was a con- solidation Act and it is the invariable practice of Parliament to require from those who have prepared a consolidation Bill an assurance that it will make no substantial change in the law and to have that checked by a committee. On this assurance the Bill is then passed into law, no amendment being permissible. So, in order to pave the way for the consolidation Act of 1925, earlier‘AUG. 4, 1967 THE WEEKLY LAW REPORTS [1967] 3 WLR. Acts were passed in 1922 and 1924 in which were enacted all the substantial amendments which now appear in the Act of 1925 and these amendments were then incorporated in the Bill which became the Act of 1925. Those earlier Acts contain nothing corresponding to section 56 and it is therefore quite certain that those responsible for the preparation of this legislation must have believed and intended that section 56 would make no substantial change in the earlier law, and equally certain that Parliament passed section 56 in reliance on an assurance that it did make no substantial change. In construing any Act of Parliament we are seeking the intention of Parliament and it is quite true that we must deduce that inten- tion from the words of the Act. If the words of the Act are only capable of one meaning we must give them that meaning no matter how they got there. But if they are capable of having more than one meaning we are, in my view, well entitled to see how they got there. For purely practical reasons we do not permit debates in either House to be cited: it would add greatly to the time and expense involved in preparing cases involving the con- struction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel to get access to at least the older reports of debates in Select Committees of the House of Commons; moreover, ina very large proportion of cases sucha search, even if practicable, would throw no light on the question before the court, But I can see no objection to investigating in the present case the antecedents of section 56. Section 56 was obviously intended to replace section $ of the Real Property Act, 1845 (8 and 9 Vict. c. 106). That section provided: “That, under an indenture, executed after October 1, 1845, an immediate estate or interest, in any tenements or here- ditaments, and the benefit of a condition or covenant, respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture. . ..” Section 56 (1) now provides: “A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he may not be named as a party to the conveyance or other instrument: . . . If the matter stopped there it would not be difficult to hold that section 56 does not substantially extend or alter the provisions of section 5 of the Act of 1845. But more difficulty is introduced by the definition section of the Act of 1925 (section 205) which provides: “(1) In this Act unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say:— . . . (xx) ‘Property’ includes any thing in action, and any interest in real or personal property.” 937 HLE) 1967 Beswick Beswi Lop Reto938 [1967] 3 W.LR. THE WEEKLY LAW REPORTS ‘Avo. 4, 1967 HL) Before further considering the meaning of section 56 (1) I must 1967 __set out briefly the views which have been expressed about it in Beswick earlier cases. White v. Bijou Mansions Ltd.‘ dealt with a cove- Becvick ant relating to land. ‘The interpretation of section 56 was not the Lorem Main issue. Simonds J, rejected an argument that section 56 ‘np Re? enabled anyone to take advantage of a covenant if he could show that if the covenant were enforced it would redound to his advantage. He said *: “Just as under section 5 of the Act of 1845 only that person could call it in aid who, although not a party, yet was a grantee or covenantee, so under section 56 of this Act only that person can call it in aid who, although not named as a party to the conveyance or other instrument, is yet a person to whom that conveyance or other instriment purports to grant something or with which some agreement or covenant is purported to be made.” He was not concerned to consider whether or in what way the section could be applied to personal property. In the Court of Appeal * Sir Wilfrid Greene M.R. said, in rejecting the same argument as Simonds J. had rejected: “Before he can enforce it he must be a person who falls within the scope and benefit of the covenant according to the true construction of the document in question.” Again he was not considering an ordinary contract and I do not think that he can be held to have meant that every person who falls within the “scope and benefit” of any contract is entitled to sue, though not a party to the contract. In In re Miller's Agreement’ two partners covenanted with a retiring partner that on his death they would pay certain annuities to his daughters. The Revenue’s claim for estate duty was rejected. The decision was clearly right. The daughters, not being parties to the agreement, had no right to sue for their annuities. Whether they received them’or not depended on whether the other partners were willing to pay or, if they did not pay, whether the deceased partner's executor was willing to enforce the contract. After citing the earlier cases Wynn-Party J. sai “I think it emerges from these cases that the section has not the effect of creating rights, but only of assisting the pro- tection of rights shown to exis Iam bound to say I do not quite understand that. I had thought from what Lord Simonds said in White's case* that section 5 of the Act of 1845 did enable certain persons to take benefits which they could not have taken without it. If so it must have given them rights which they did not have without it. And if that is so section 56 must now have the same effect. In Smith and Snipes Hall Farm Ltd. v. River Douglas Catchment Board” Denning 411937] Ch. 610; 53 TLR. 88; [1947] Ch. 615, 622. [1937] 3 All ER, 269. ° [1937] Ch, 610. ® (1937) Ch. 610, “625. 40 [1949] 3 KB. 500, 517; 65, © [1938] Ch. 351,'365;'54 TLR. TLR. 628; [1949] 2 All’ E.R."179, 458; [1938] T All BR, $46, CA” CA. ER Hoel Ch. 1s [94h 2 AuAvo. 4, 1967 THE WEEKLY LAW REPORTS [1967] 3 W.LR. L4J., after stating his view that a third person can sue on a con- tract to which he is not a party, referred to section 56 as a clear statutory recognition of this principle, with the consequence that Miller's case™ was wrongly decided. I cannot agree with that. And in Drive Yourself Hire Co, (London) Ltd, v. Strutt * Denning L.J. again expressed similar views about section 56. I can now return to consider the meaning and scope of section $6. It refers to any “agreement over or respecting land or other property”. If “land or other property” means the same thing as “tenements or hereditaments ” in the Act of 1845 then this section simply continues the law as it was before the Act of 1925 was passed, for I do not think that the other differences in phrase- ology can be regarded as making any substantial change. So any obscurities in section 56 are obscurities which originated in 1845, But if its scope is wider, then two points must be considered. The section refers to agreements “over or respecting land or other property.” The land is something which existed before and inde- pendently of the agreement and the same must apply to the other Property. So an agreement. between A and B that A will use certain personal property for the benefit of X would be within the scope of the section, but an agreement that if A performs certain services for B, B will pay a sum to X would not be within the scope of the section. Such a capricious distinction would alone throw doubt on this interpretation. Perhaps more important is the fact that the section does not say that a person may take the benefit of an agreement although he was not a party to it: it says that he may do so although he was not named as a party in the instrument which embodied the agreement. It is true that section 56 says although he may not be named; but section 5 of the Act of 1845 says although he be not named a party. Such a change of phraseology in a con- solidation Act cannot involve a change of meaning. I do not profess to have a full understanding of the old English law regard- ing deeds. But it appears from what Lord Simonds said in White’s case * and from what Vaisey J. said in Chelsea and Walham Green Building Society v. Armstrong ** that being in fact a party to an agreement might not be enough; the person claiming a benefit had to be named a party in the indenture, I have read the explanation of the old law given by my noble and learned friend, Lord Upjohn. I would not venture to criticise it, but I do not think it necessary for me to consider it if it leads to the conclusion that section 56 taken by itself would not assist the present respondent. But it may be that additional difficulties would arise from the application to section 56 of the definition of property in the defini- tion section. If so, it becomes necessary to consider whether that definition can be applied to section 56. By express provision in 11 [1947] Ch. 615. 35 [1937] Ch. 610. 12 [1954] 1 'Q.B, 250; [1953] 3 ¥4 [1951] Ch. 853; 1951] 2 TLR. WER 1111; 0953} 2AM ER 1475, 312; 951) 2 AIL CAL ~ 250. 939 He) 1967 Beswick Beswick Lox Rei940 HL) 1967 Beswick Beswick Lor Rep [1967] 3 W.LR. THE WEEKLY LAW REPORTS Aus. 4, 1967 the definition section a definition contained in it is not to be applied to the word defined if in the particular case the context otherwise requires. If application of that definition would result in giving to section 56 a meaning going beyond that of the old section, then, in my opinion, the context does require that the definition of “property” shall not be applied to that word in section 56. The context in which this section occurs is a con- solidation Act. If the definition is not applied the section is a proper one to appear in such an Act because it can properly be regarded as not substantially altering the pre-existing law. But if the definition is applied the result is to make section 56 go far beyond the pre-existing law. Holding that the section has such an effect would involve holding that the invariable practice of Parliament has been departed from per incuriam so that-some- thing has got into this consolidation Act which neither the drafts- man nor Parliament can have intended to be there. I am reinforced in this view by two facts. The language of section 56 is not at all what one would have expected if the intention had been to bring in all that the application of the definition would bring in. And, secondly, section 56 is one of 25 sections which appear in the Act under the cross-heading “ Conveyances and other Instruments.” The other twenty-four sections come appro- ptiately under that heading and so does section 56 if it has a limited meaning: but, if its scope is extended by the definition of property, it would be quite inappropriately placed in this part of the Act. For these reasons I am of opinion that section 56 has no application to the present case. The respondent's second argument is that she is entitled in her capacity of administratrix of her deceased husband’s estate to enforce the provision of the agreement for the benefit of herself in her personal capacity, and that a proper way of enforcing that provision is to order specific performance. That would produce a just result, and, unless there is some technical objection, 1 am of opinion that specific performance ought to be ordered. For the reasons given by your Lordships I would reject the arguments submitted for the appellant that specific performance is not a possible remedy in this case. I am therefore of opinion that the Court of Appeal reached a correct decision and that this appeal should be dismissed. Lorp Hopsox. My Lords, the question is whether the respon- dent, who is the personal representative of her late husband, is entitled in that capacity or personally to enforce payment of an annuity of £5 a week which on March 12, 1962, the appellant agreed to pay to her. This arose from an agreement by the husband to sell his coal merchant’s business to the appellant for a consideration. Part of the consideration was to pay the annuity to the respondent. The respondent as administratrix and therefore a party by representation to the agreement has a cause of action to sue onAva. 4, 1967 THE WEEKLY LAW REPORTS [1967] 3 WLR. the agreement, as, indeed, is admitted in the defence. The only question is, “What is the appropriate remedy?” It would be strange if the only remedy were nominal damages recoverable at common law or a series of actions at law to enforce the perfor- mance of a continuing obligation. Although the point was discussed during the course of the case, it is not now contended that at common law (apart from statute), since the contract by its express terms purports to confer a benefit on a third party, the third party’ can be entitled to enforce the provision in his own name. Similarly, it is not now argued that the claim can be enforced as a trust. The respondent is no longer making any claim in her personal capacity, save under a statute. The surviving issues in the case are two: first, whether the Court of Appeal were justified in making an order for specific performance by directing that the appellant do pay to the respon- dent during the remainder of her life from July 15, 1964 (the date Of the issue of the writ), an annuity at the rate of £5 per week in accordance with the agréement; second, whether or not the common law rule that a contract such as this ome, which purports to'confer a benefit on a stranger to the contract, cannot be enforced by the stranger has been 1o all intents and purposes (with,a few exceptions) destroyed by the operation of section 56 (1) of the Law of Property Act, 1925, I will deal with this section first. It provides: “A petson may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he may not be named as a party to the conveyance or other instrument.” The definition section, 205, provides: “ (1) In this Act unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say:— . . . (xx) * Property” includes any thing'in action, and any interest in real or personal property.” Section 56 replaced section 5 of the Real Property Act, 1845, which provided : “That, under an indenture, executed after October 1, 1845, an immediate estate or interest, in any tenements or heredita- ments, and the benefit of a condition or covenant, respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to.the same indenture. One effect of section 56 was to make clear that which may not have been plain.in the authorities, that those matters dealt with were not confined to covenants, etc., running with the land. The Law of Property Act, 1925, was a consolidating Act and came into force on January 1, 1926, at the same time as two other ‘Acts, namely, the Law of Property Act, 1922, and the Law of Property (Amendment) Act, 1924. These last two Acts were to be construed as one Act cited together as the Property Acts, 1922 and 1924 (sce section 12 (2) of the Act of 1924). Neither of them VoL. 3 35 Loxp Hopson942 LE) 1967 Beswick Beswick Loxp Hopson [1967] 3 WLR. THE WEEKLY LAW REPORTS Avo. 4, 1967 touched the question raised by the language of section 56 of the Act of 1925, One cannot deny that the view of Lord Denning M.R. ex- pressed so forcibly, not for the first time, in his judgment in this case, reinforced by the opinion of Danckwerts LJ. in this case, is of great weight notwithstanding that it runs counter to the opinion of all the other judges who have been faced by the task of interpreting this remarkable section, namely, section 56 of the Act of 1925. Contained, as it is, in a consolidation Act, an Act, moreover, dealing with real property, is it to be believed that by a side wind, as it were, Parliament has slipped in a provision which has revolutionised the law of contract? Although the pre- sumption is against such an Act altering the law, the presumption must yield to plain words to the contrary. ‘Apart from the definition in section 205, I doubt whether many would have been disposed to the view that the general law which declares who can sue upon a contract’ had received the mortal blow which section 56 is said to have inflicted on it. The use of the word “agreement” is inapt to describe a unilateral promise. However, the definition section, if it is to be applied expressly, refers to property as including “any interest in real or personal property.” But for the saving words “ unless the context otherwise requires” I should have felt grave difficulty in resisting the argu- ment that Parliament, even if it acted per incuriam, had somehow allowed to be slipped into consolidating legislation, which had nothing to do with the general law of contract, an extraordinary provision which had such a drastic effect. The section has been discussed in a number of cases which were cited by Wynn-Parry J. in the case of In re Miller's Agree- ‘ment.* A useful summary of the opinions contained in the cases is to be found ** where Wynn-Parry J. cited a passage from In re Foster" which appears in the opinion of my noble and learned friend, Lord Pearce. Like Crossman J. I am unable to believe that such an enormous change in the law has been made by section 56 as to establish that an agreement by A with B to pay money to C gives C a right to sue on the contract. Section 56 has. been discussed in recent common law cases, for example, Green v. Russell*® where the argument was rejected by the Court of Appeal. Before the Court of Appeal in Midland Silicones Ltd. v. Scruttons Ltd.** to the best of my recollection the argument based on section 56 was not pressed. The case came before your Lordships.* If the section was mentioned it is not easy to see from the report that it played a great part in the case. Viscount Simonds who at first instance had given con- sideration to the section (see White v. Bijou Mansions Ltd.**) can 38 [1947] Ch, 615. 39 [1961] 1 Q.B. 106; [1960] 3 18 Tid. 621. W.LR. 372; [1960]2 All ER. 737, 17 (1938) 54 TLR. 993; [1938] 3 CA. AILE.R. 357, 20 [1962] A.C, 446; [1962] 2 38 [1959] 2 QB. 226; [1959] 3 W.L-R. 186; [1962] 1 All ER. i, WLR. 17; [1959] 2 All ER. 525, HL). c. 35 [1937] Ch. 610.Ava. 4, 1967 THE WEEKLY LAW REPORTS [1967] 3 WLR. scarcely have been unconscious of the section when he said in the Midland Silicones case **: “If the principle of jus quaesitum tertio is to be introduced into our law, it must be by Parliament after a due considera- tion of its merits and demerits. I should not be prepared to give it my support without a greater knowledge than I at present possess of its operation in other systems of law.” Section 56 had as long ago as 1937 received consideration by the Law Revision Committee presided over by Lord Wright, then Master of the Rolls, and containing a number of illustrious law- yers. The committee was called upon to report specially on con- sideration, including the attitude of the common law towards the jus quaesitum tertio. It had available to it and considered the decision of Luxmoore J. in In re Ecclesiastical Commissioners for England’s Conveyance,®* which gave the orthodox view of the section. By its Report (Cmd. 5449) it impliedly rejected the revolutionary view, for it recommended (para. 50 (a), pp. 31-32): “That where a contract by its express terms purports to confer a benefit directly on a third party, it shall be enforce- able by the third party in his own name.” Like my noble and learned friend, Lord Reid, whose opinion I have had the opportunity of reading, I am of opinion that section 56, one of 25 sections in the Act appearing under the cross-heading “Conveyances and other Instruments,” does not have the revolutionary effect claimed for it, appearing as it does in a consolidation Act. I think, as he does, that the context does otherwise require a limited meaning to be given to the word “property ” in the section. Although, therefore, the appellant would succeed if the respon- dent relied only upon section 56 of the Act of 1925, I see no answer to the respondent's claim for specific performance and no possible objection to the order made by the Court of Appeal on the facts of this case. Indeed, on this aspect of the case it seems that most of the appellant's defences were down before the case reached your Lordships’ House. For example, it was argued at one time that the equitable remedy of specific performance of a contract to make a money payment was not available. This untenable contention was not proceeded with. Further, it was argued that specific per- formance would not be granted where the remedy at law was adequate and so should not be ordered. The remedy at law is plainly inadequate, as was pointed out by the Court of Appeal, as () only nominal damages can be recovered; (2) in order to enforce a continuing obligation it may be necessary to bring a series of actions whereas specific performance avoids multiplicity of action. Again, it was said that the courts will not make an order which cannot be enforced. This argument also fell by the wayside for plainly the order can be enforced by the ordinary methods of exeoution (see RS.C., Ord. 45, r. 1, and Ord. 45, r. 9). 22 [1962] A.C. 446, 468. *9 [1936] Ch. 430. 943 HL) 1967 Beswick Beswick Loxo Hopson944 HLE) 1967 Beswick Loap Hopson [1967] 3 W.LR. THE WEEKLY LAW REPORTS Ava. 4, 1967 The peculiar feature of this case is that the plaintiff is not only ‘the personal representative of the deseased but also his widow and the ‘person beneficially entitled to the money claimed. Although the widow cannot claim specific performance in her personal capacity, there is no objection to her doing so in her capacity as administratrix, and when the moneys are recovered they will be in this instance held for the benefit of herself as the person for whom they are intended. The authorities where the remedy of specific performance has been applied in such circumstances as these are numerous. Examples are mentioned in the judgments of the Court of Appeal which have dealt fully with this matter and there is no need to elaborate the topic. Keenan y. Handley* is a very striking example which appears to be exactly in point. It is to be noticed that the learned counsel engaged in this and other cases never took the point now relied on that the personal representative of the contracting party could not enforce a contract such as this. As I understood the argument, for the appellant it was contended that the personal representative could not obtain specific performance as the estate had nothing to gain, having suffered no loss. There is no authority which supports this proposition and I do not think it has any validity. In Hohler v. Aston a decision of Sargant J. is good authority to the contrary. A Mrs. Aston agreed with her nephew Mr. Hohler to make provision for her niece and her husband, Mr. and Mrs. Rollo.- Mrs. Aston died before doing so. Mr. Hohler and Mr. and Mrs. Rollo sued the executors of Mrs. Aston for specific performance and succeeded. Sargant J. said ** “The third parties, of course, cannot themselves enforce a contract made for their benefit, but the person with whom the contract is made is entitled to enforce the contract.” ‘Mr. Hobler, like the respondent in her capacity as administratrix, took no benefit under the contract but was rightly allowed to recover. It is no part of the law that in order to sue on a contract one must establish that it is in one’s interest to do so.. Absurd results would follow if a defendant were entitled to lead evidence to show that it would pay the plaintiff better not to sue for specific performance of, say, the sale of a house because the plaintiff could sell it for a higher price to someone else. It is true that specific performance would not be ordered so as to disregard the fiduciary position which the appellant occupies as administratrix. Situations might arise in the administration of an estate when there might be conflicting claims between creditors and persons entitled bene- ficially otherwise, but this is not such a case. ‘There was in the agreement reference to creditors but there was no evidence directed to this matter and no reason to assume the existence of conflicting claims at the present day. In such a case as: this, there having been an. unconscionable breach of faith, the equitable remedy sought is apt. The appellant 24 (1864) 2 De GJ. & Sm. 283. * Ibid. 425. 25 [1920] 2 Ch. 436.Ava. 4, 1967 THE WEEKLY LAW REPORTS [1967] 3 WLR. has had the full benefit of the contract and the court will be ready to sée that he performs his part (see the judgment of Kay J. in Hart v. Hart *), I would dismiss the appeal. Lorp Guest. My Lords, by agreement, dated March 14, 1962, the late Peter Beswick assigned to Joseph Beswick his business as coal merchant in consideration of Joseph employing Peter as a consultant for the remainder of his life at a weekly salary of £6 10s. Od. For the like consideration Joseph, in the event of Peter's death, agreed to pay his widow an annuity charged on the business at the rate of £5 per week. Peter Beswick died on November 30, 1963, and the respondent is the administratrix of his estate. She claims in these proceedings personally and as administratrix of her late husband against Joseph Beswick the appellant for specific performance of the agreement and for payment of the annuity. Her case before the Vice-Chancellor of the Chancery Court of the County Palatine of Lancaster failed but she succeeded before the Court of Appeal in obtaining an order for specific perfor- mance of the agreement of March 14, 1962. Although the Court of Appeal were only unanimous upon one point in sustaining the respondent's claim there only now remain two outstanding questions for this House. The first question is whether the respondent as administratrix of the estate of the late Peter Beswick is entitled to specific per- formance of the agreement of March 14, 1962. Upon this matter Thave had the opportunity of reading the speech of my noble and learned friend, Lord Reid. I agree with him in thinking that the respondent is entitled to succeed on this branch of the case. The second question is whether the respondent as an individual is entitled to the relief which she claims. Although Lord Denning MAR. in the Court of Appeal alone took the view that she was entitled to sue at common law, no question was raised in this House as to the respondent's right at:common law in her personal capacity as beneficiary to sue. The decision in Tweddle v. Atkinson ® was not challenged in this House by the respondent. ‘The question remains, however, whether such a right is conferred on her by section 56 (1) of the Law of Property Act, 1925. This question does not strictly arise in view of the decision of the House on specific performance but, as the Court of Appeal decided by a majority in the respondent's favour and as the matter was widely canvassed in argument, it is proper to deal with it. Section 56 (1) is in the following terms: “A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property although he may not be named as a party to the conveyance or other instrument.” 2 (1881) 18 Ch.D. 670. 28 (1861) 1B. & S. 393,946 Le) 1967 ‘Beswick Beswick Loab Guest [1967] 3 W.LR. THE WEEKLY LAW REPORTS Aus. 4, 1967 By section 205 (1) (xx) “unless the context otherwise requires ‘property’ includes any thing in action and any interest in real or personal property.” Mr. Francis for the respondent argued that for section 56 (1) to apply, only four conditions were neces- sary: (1) the covenant must be contained in an instrument in writing; (2) the covenant must be in respect of land or other property as defined; (3) the covenant must be directly for the benefit of a person not a party to the deed; and (4) the covenant must be legally enforceable, ie., supported by consideration or under seal. As the covenant to pay an annuity in the deed of March 14, 1962, complied with these four conditions, the respon- dent, he argued, was entitled to claim her annuity. Before con- sidering section 56 (1) it is necessary to recall the terms of section 5 of the Law of Property Act, 1845, which is said to be the predecessor of section 56 (1) of the Act of 1925. The earlier section was in the following terms: “That, under an indenture, executed after October 1, 1845, an immediate estate or interest, in any tenements or heredita- ments, and the benefit of a condition or covenant, respecting any:tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture... .” As the preamble to the Act of 1925 shows, it was an Act “to consolidate the enactments relating to conveyancing and the law of property in England and Wales.” In these circumstances the presumption is that such an Act is not intended to alter the law, but this prima facie view must yield to plain words to the con- trary (Grey v. Inland Revenue Commissioners.” Viscount Simonds). As appears from the speech of Viscount Simonds, the 1925 Act was preceded by two Law of Property Acts, one in 1922 and one in 1924, which by amendments paved the way for the consolidation of the law of property in the Act of 1925. Section 5 of the Act of 1845 does not appear among the amendments made either in the Acts of 1922 or 1924, but is repealed nominatim by the Act of 1925. The law prior to the passing of the Act of 1925 was not in doubt, Section 5 of the Act of 1845 applied only to covenants relating to land and did not extend to personalty. ‘The purpose of section 5 was clearly expressed by Simonds J. (as he then was) in White v. Bijou Mansions Ltd In Forster V. Elvet Colliery Co. Ltd. the Court of Appeal decided that the section only applied to covenants “running with the lands” (Farwell L.J.%*). It is true that when the case reached the House of Lords (sub nom, Dyson v. Forster*) Lord Macnaghten** doubted whether the section was confined to covenants running with the lands, but the case was decided on other grounds. There- fore, Mr. Francis’s suggestion that section 56 (1) was introduced to resolve the doubt as to the application of section 5 of the Act ° (1960) A.C. 1, 14 [1959] 3 82 [1908] 1 K.B, 629, 632, 759; [1959] 3 All E.R. 603, nr [19091 AC. 98; 25 T.L.R. 166, L m be 5 (b37 Ch, 610, 623. $4 [1909] A.C. 98, 102. 265 at pes 1 K.B. 629; 24 TLR.Aus. 4, 1967 THE WEEKLY LAW REPORTS [1967] 3 WLR. of 1845 to covenants running with the lands cannot carry weight; the law as decided by the Court of Appeal in Forster ** was clear. And, indeed, this was confirmed subsequently in Grant v. Edmondson. Moreover, this suggestion as to the purpose of section 56 (1) does not accord with the respondent’s main sub- mission that section 56 (1) applies to all covenants affecting land and personalty. If this contention were sound, it would mean that by a side wind a fundamental change in the law had been effected in a consolidating statute. It would subvert the law as set out in Tweddle v. Atkinson*" affirmed in Dunlop Pneumatic Tyre Co. v. Selfridge & Co. Ltd.** and confirmed in Scruttons Ltd. v. Mid- land Silicones Ltd.** that a person who is not a party to a contract cannot sue on it, even if it purports to be made for his benefit. I cannot believe that Parliament intended to make so fundamental a change in a consolidating Act with the history of the Acts of 1922 and 1924 before them. It is said that one of the purposes of the Act of 1925 was to assimilate the law of real and personal property. If that had been the intention of Parliament the amend- ment would surely have been made in the earlier amending Acts of 1922 or 1924, The impact of section 56 (1) of the Act of 1925 has been the subject of judicial consideration in several cases. Apart from Lord Denning and Danckwerts L.J. in this case in the Court of Appeal and dicta of Lord Denning in other cases, it has never been held to. have the far-reaching effects contended for by the respondent. In In re Ecclesiastical Commissioners For England's Conveyance,* the first case where section 56 was considered, Luxmoore J. did express the view that section 56 had enlarged the scope of section 5, but this opinion was obiter. In White v. Bijou Mansions Ltd.** Simonds J. (as he then was) took the view that section 56 did not effect the fundamental change in the law suggested but that it “can be called in did only by a person in whose favour the grant purports to be made or with whom the covenant or agreement purports to be made.” Sir Wilfred Greene M.R. in the Court of Appeal in the same case took the same broad view as Simons J. but for the reason that before a person not a party to the contract can enforce it he must be within the scope and benefit of the covenant according to the true construction of the document in question? In In re Miller’s Agreement * Wynn-Parry J. took the view that section 56 had not the effect of creating rights, but only of effecting the protection of rights shown to exist, Lord Denning’s views as to the effect of section 56, as expressed in the Court of Appeal case, were preceded by similar observations in previous cases. Thus in Smith and Snipes Hall Farm Lid. v. 35 [1908] 1 K.B, 629. 3 [1962] A.C. 446, 30 [1931] 1 Ch. 1, CA, 49 [1936] Ch. 430. ar 1 BL & S. 393. 41 [1937] Ch. 610, 625. 98 [1915] AC. 847; 31 TLR. 399, «2 [1938] Ch. 351, 365. HLA). +8 [1947] Ch, 615,'622. 947 LE) 1967 Beswick Beswick Loap Guest948 BLE) 1967 Beswick Beswick Loxp Guesr [1967] 3 WLR. THE WEEKLY LAW REPORTS — Aus. 4, 1967 River Douglas Catchment Board“ he expressed the view obiter that section 56 was a statutory recognition of the principle that a third party may take the benefit of a covenant although he may not be named as a party to the instrument. This was followed by Drive Yourself Hire Co. (London) Lid. v. Strutt * where Denning LJ. (as he then was) expressed the view that section 56 did away with the rule in Tweddle v. Atkinson ** in cases respect- ing property, but he was alone in that view. Somervell and Romer L.JJ. do not refer to section 56. In the present case in the Court of Appeal Lord Denning M.R. and Danckwerts LJ. considered that section 56 had abrogated the tule in Tweddle v. Atkinson *— received the mortal wound which it well deserved” as Danckwerts L.J, put it” Salmon L.J. doubted if the decision in Seruttons Ltd. v. Midland Silicones Lid.** left him free to do so. Having regard to the law previous to 1925 and to the expres- sions of judicial opinion since, I cannot think that Parliament intended to make such a clean sweep of the previous law as the respondent's construction of section 56 would involve. There is, in my view, no half-way house between this extreme construction which would apply section 56 to a covenant or agreement relating to property in the wide sense of the definition section or limiting the construction to the law as previously existing. I am not satis- fied that the limitations suggested by Wynn-Parry J. in In re Miller's Agreement, Simonds J. and Greene MR. in White v. Bijou Mansions Lid.*° can be satisfactorily justified upon a construction of the section 56. If, of course, the words of section 56 are susceptible of only one construction, then the court must give effect to that con- struction. But, as this is a consolidating Act, if the words are capable of more than one construction, then the court will give effect to that construction which does not change the law. Section 208 (1) of the 1925 Act—the definition section—commences with the expression in common form “unless the context otherwise requires.” In my view, the context requires that section 56 should not extend the provisions of section 5 of the Act of 1845, which were limited to land, to personality. If section 56 was designed to replace section 5, it does not replace it by extending its scope to personalty. On referring to section 56 it will be seen that the definition section 205 is the section which creates the difficulty. ‘Apart from this section it would have been proper, according to the ejusdem generis rule, to construe “or other property” in section 56 as referring to real property to which its predecessor in section 5 of the Act of 1845 was limited. It may be that the draftsman in incorporating the wide definition of “ property ” into 4 [1949] 2 KB. 500. 48 [1962] AC. 446, +5 [1954] 1 Q.B. 250. 40 [1947] Ch. 615, 622. “1B & S. 393. 50 [1937] Ch. 610, 625; [1938] 351, * [1966] Ch. $38, 563: (1966) 3365. wi 396; [1966]'3 Al ER. 1,Aus. 4, 1967 THE WEEKLY LAW REPORTS [1967] 3 WLR. section 56 had overlooked the result which it would’ have on the effect of this section by extending it beyond its predecessor. I am constrained to hold that if section 56 is to replace the previous law in section 5 of the Act of 1845, this can only be done by limiting the word “property” in section 56 to real property and thereby excluding the wide definition of “ property” contained in section 205 (1) (xx). The result is that the respondent has, in my view, no right to sue on the agreement of March 14, 1962, in her individual capacity. However, for the reasons already given, I would dismiss the appeal. Lorp Pearce. My Lords, if the annuity had been payable to a third party in the lifetime of Beswick, senior, and there had been default, he could have sued in respect of the breach. His adminis- tratrix is now entitled to stand in his shoes and to’sue in respect of the breach which has occurred since his death. It is argued that the estate can only recover nominal damages and that no other remedy is open, either to the estate or to the personal plaintiff. Such a result would be wholly repugnant to justice and commonsense. ‘And if the argument were right it would show a very serious defect in the law. In the first place, I do not accept the view that damages must be nominal. Lush LJ. in Lloyd's v. Harper * said: “Then the next question which, no doubt, is a very impor- tant and substantial one, is, that Lloyds, having sustained no damage themselves, could not recover for the losses sustained by third parties by reason of the default of Robert Henry Harper as an underwriter. That, to my mind, is a startling and alarming doctrine, and a‘novelty, because I consider it to be an established rule of law that where a contract is made with A for the benefit of B, A can sue on the contract for the benefit of B, and recover all that B could have recovered if the contract had been made with B himself.” (See also Drimmie v. Davies:'*) 1 agree with the comment of Windeyer J. in the case of Bagor’s Executor and Trustee Co. Ltd. v. Coulls** in the High Court of Australia that the words of Lush LJ. cannot be accepted without qualification and regardless of context and also with his statement: “I can see no reason why in such cases the damages which A would suffer upon B’s breach of his contract to pay C $500 would be merely nominal: I think that in accordance with the ordinary rules for the assessment of damages for breach of contract they could be substantial. They would not necessarily be $500; they could I think be less or more.” In the present case I think that the damages, if assessed, must be substantial, It is not necessary, however, to consider the amount of damages more closely since this is a case in which, as the Court of Appeal rightly decided, the more appropriate remedy is that of specific performance. 51 (1880) 16 Ch.D. 290, 321, C.A. °° (1967) March 21, Unrep. 82 [1899] 1 IR. 176. 949 nLe 7 svt sete Long Guest950 HL) 1967 Beswick Beswick Lonb Pence [1967] 3 W.LR. THE WEEKLY LAW REPORTS Aus. 4, 1967 The administratrix is entitled, if she so prefers, to enforce the agreement rather than accept its repudiation, and specific perfor- mance is more convenient than an action for arrears of payment followed by separate actions as each sum falls due. Moreover, damages for breach would be a less appropriate remedy since the parties to the agreement were intending an annuity for a widow; and a lump sum of damages does not accord with this. And if (contrary to my view) the argument that a derisory sum of damages is all that can be obtained be right, the remedy of damages in this case is manifestly useless. The present case presents all the features which led the equity courts to apply their remedy of specific performance. The contract was for the sale of a business. The defendant could on his part clearly have obtained specific performance of it if Beswick senior or his administratrix had defaulted. Mutuality is a ground in favour of specific performance. Moreover, the defendant on his side has received the whole benefit of the contract and it is a matter of conscience for the court to see that he now performs his part of it. Kay J. said in Hart v. Hart **: “. ., when an agreement for valuable consideration . . . has been partially performed, the court ought to do its utmost to carry out that agreement by a decree for specific per- formance.” What, then, is the obstacle to granting specific performance? It is argued that since the widow personally had no rights which she personally could enforce the court will not make an order which will have the effect of enforcing those rights. I can find no principle to this effect. ,The condition as to payment of an annuity to the widow personally was valid. The estate (though not the widow personally) can enforce it. Why should the estate be barred from exercising its full contractual rights merely because in doing so it secures justice for the widow who, by a mechanical defect of our law, is unable to assert her own rights? Such a principle would be repugnant to justice and fulfil no other object than that of aiding the wrongdoer. I can find no ground on which such a principle should exist. In Hohler v. Aston* Sargant J. enforced a contract relating to the purchase of a house for the benefit of third parties. ‘The third parties were joined as plaintiffs, but the relief was given to the plaintiff who had made the contract for their benefit **: “The third parties, of course, cannot themselves enforce a contract made for their benefit, but the person with whom the contract is made is entitled to enforce the contract.” In Keenan v. Handley * the court enforced an agreement pro- viding the benefit of an annuity in favour of a mother who was a party to the agreement and, after her death, to her child, who was not a party to it. 54 18 ChD. 670, 685. 80 Ibid. 425, 5 [1920] 2. Ch,’ 420. 512 De G, . & Sm. 283.D Ava. 4, 1967 THE WEEKLY LAW REPORTS [1967] 3 WLR. And in Drimmie v. Davies" the Court of Appeal in Ireland ordered specific performance of an agreement whereby annuities were provided for third parties. Holmes L.J. there said: “In this case Davies, junior, covenanted for valuable con- 951 LE) 1967 Beswick sideration with Davies, senior, that in certain events he would 4 0.5 prance pay certain annuities to the children of the latter. If such annuities had become payable in the life of the covenantee, and they were not paid, what legal obstacle would there be to his suing the covenantor? Indeed, I believe that it is admitted that such an action would lie, but that it, would only result in nominal damages. A result more repugnant to justice, as well as to legal principle, I can hardly imagine. ‘The defendant would thereby escape from paying what he had undertaken to-pay by making an illusory payment never contemplated by either party. Well, if Davies, senior, would have been entitled to sue in his lifetime if the annuities were then payable, his executors would have the same right of action after his death. As I have already said, the question is elementary.” Recently in Bagor’s case ** the learned Chief Justice of Aus- tralia, Sir Garfield Barwick, in commenting on the report of the Court of Appeal’s decision in the present case, said: “I would myself, with great respect, agree with the con- clusion that where A promises B for a consideration supplied by B to pay C that B may obtain specific performance of A’s promise, at least where the nature of the consideration given would have,allowed the debtor to have obtained specific performance. 1 can see no reason whatever why A in those circumstances should not be bound to perform his promise. That C provided no part of the consideration seems to me irrelevant.” Windeyer J. in that case said: “It seems to me that contracts to pay money or transfer property to a third person are always, Or at ail events. very often, contracts for breach of which damages would be an inadequate remedy—all the more so if it be right (I do not think it is) that damages recoverable by the promisee are only nominal. Nominal or substantial, the question seems 0 be the same, for when specific relief is given in lieu. of damages it is because the remedy, damages, cannot satisfy the demands of justice. ‘The court” said Lord Selbourne, “gives specific performance instead of damages, only when it can by that means do more perfect and complete justice ’: Wilson v. Northampton and Banbury Junction Railway Co.** Lord Erskine in Alley v. Deschamps* said of the doctrine of specific performance: ‘This court assumed the jurisdiction upon this simple principle; that tho party had a legal right to the performance of the contract; to which right the courts of law, whose jurisdiction did not extend beyond damages, had not the means of giving effect.’ Complete and perfect justice to a promisee may well require that a promisor perform his promise 10 pay money or transfer property to a third party. I see no reason why specific performance 38 (1899) 1 InR. 176. * (1874) 9 Ch.App. 279, 284. 39 Ibid, 190. 2 (1806) 13 Ves. 225, 327-228, «0 (1967) March 21, unrep.952 HL) 1967 Beswick — Beswick Lond Pearce [1967] 3 W.LR. THE WEEKLY LAW REPORTS — Avo. 4, 1967 should not be had in such cases—but of course not where the promise was to render some personal service. There is no reason to-day for limiting by particular categories, rather than by general principle, the cases in which orders for specific performance will be made. The days are long past when the common law courts looked with jealousy upon what they thought was a usurpation by the Chancery court of their jurisdiction.” He continued later: “It is, I think, a faulty analysis of legal obligations to say that the law treats the promisor as having a right to elect either to perform his promise or to pay damages. Rather, using one sentence from the passage from Lord Erskine’s judgment which I have quoted above, the promisee has ‘a legal right to the performance of the contract.” Moreover we are concerned with what Fullagar J. once called ‘a system which has never regarded strict logic as its sole inspiration.” Tatham v. Huxtable.” © I respectfully agree with these observations. It is argued that the court should be deterred from making the order because there will be technical difficulties in enforcing it. In my opinion, the court should not lightly be deterred by such a consideration from making an order which justice requires. But I do not find this difficulty. R.SC. Ord. 45, r. 9 (1), provides under the heading “ Execution by or against a person not being a party ”: “ Any person, not being a party to a cause or matter, who obtains any order or in whose favour any order is made, shall be entitled to enforce obedience to the order by the’ same Process as if he were not a party.” ‘This would appear by its wide terms to enable the widow for whose benefit the annuity is ordered to enforce its payment by the appointment of a receiver, by writ of fi, fa., or even by judg- ‘ment summons. I see no reason to limit the apparent meaning of the words of the rule, which would appear to achieve a sensible purpose. Moreover, I see no objection in principle to the estate enforcing the judgment, receiving the fruits on behalf of the widow and paying them over to the widow, just as a bailee of goods does when he recovers damages which should properly belong to the true owner of the goods. It is contended that the order of the Court of Appeal is wrong and there should be no specific performance, because the condition that the defendant should pay off two named creditors has been omitted, and there can be no enforcement of part of-the contract. But the assumption, since we have no evidence on the matter, is that the creditors have both already been paid off. And even if they have not, a party is entitled to waive a condition which is wholly in his favour; and its omission cannot be used by the defendant as a ground for not performing his other parts of the contract. It is unnecessary, therefore, to consider in what circum- stances a contract may be enforced in part. #9 (1950) 81 CLR. 639, 649,