58 HOUSE OF LORDS [1968] H.L.(E) reading the speech prepared by my noble and learned friend Lord 1967 Hodson in this appeal. I agree with it entirely, and for the reasons —Ximond he gives I would dismiss this appeal. Birgiigtam . Appeal dismissed. Solicitors: Solicitor, Inland Revenue; Swepstone, Walsh & Son for Scadding, Jessop & Co., Edgbaston. ChE {HOUSE OF LORDS] Het ey BESWICK Abeer agin, 0 20, 24, 25; Jun’?s’ BESWICK. . . . «~~. ~~ ~—«-RESPONDENT Contract—Parties—Third 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 & 16 Geo. 5, c. 20), ss. 205 (1) (xx). Specific Performance—Contract to pay money—Enforcement by third party—R.S.C., Ord. 42, r. 26. By section 56 (1) of the Law of Property Act, 1925: “ & 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, . . .” 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 say: . (xx) ‘Property’ includes * Present: LorD REID, Lorp Hopson, Lorp Guest, Lorp PEARCE and Lorp UPJOHN.AC AND PRIVY COUNCIL 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, that the widow was not entitled to enforce the obligation in her personal capacity, 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). Per Lord Upjohn: I find it difficult to dissent from the pro- position that section 56 should be limited in its application to real property, but equally difficult to agree with it. It may be that Parliament inadvertently altered the law by abrogating the old common law rule in respect of contracts affecting personal property as well as real property, but it never intended to alter the funda- mental rule laid down in Tweddle v. Atkinson (1861) 1 B. & S. 393 (post, p. 105E-G). Tweddle v. Atkinson (1861) 1 B. & S. 393; Dunlop Pneumatic Tyre Co. Ltd, v. Selfridge & Co. Ltd. [1915] A.C. 847; 31 T.L.R. 399 H.L(E.); White v. Bijou Mansions Ltd. [1937] Ch. 610; 53 T.L.R. 88; [1937] 3 All E.R. 269; [1938] Ch. 351; 54 T.L.R. 458; [1938] 1 All E.R. 546 C.A.; In re Schebsman [1944] Ch. 83; 60 T.L.R. 128; [1943] 2 All E.R. 768 C.A.; In re Miller's Agree- ment [1947] Ch. 615; [1947] 2 All E.R. 78 applied. In re Engelbach's Estate [1924] 2 Ch. 348 doubted. Decision of the Court of Appeal [1966] Ch. 538; [1966] 3 W.L.R. 396; [1966] 3 All E.R. 1, C.A. affirmed in part. AppeaL 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 59 HL) 1967 Beswick Beswick60 HL.) 1967 Beswick ve Beswick HOUSE OF LORDS 11968] 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 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 also 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. On March 14, 1962, Peter Beswick entered into a written agreement with his nephew John Joseph Beswick, the appellant. The agreement was prepared by a solicitor. The first two clauses of the agreement were as follows: “(1) Peter Beswick to assign to John Joseph Beswick the goodwill, motor lorry, scales, weights and other trade utensils of the business of a coal merchant hitherto carried on by him in consideration of the transferee employing the transferor as consultant to the said business for the remainder of the transferor’s life at a weekly salary of £6 10s. Od. (2) For the like consideration the transferee, in the event of the death of the transferor, to pay the transferor’s widow an annuity to be charged on the said business at the rate of £5 0s. Od. per week.” By clause 6 the transferee also agreed to take over the transferor’s liability to certain named creditors of the transferor. The appellant duly paid the salary during the life of Peter Beswick, who died intestate on November 3, 1963. Thereafter he made one payment of £5 to the respondent and then repudiated his liability to do so. The respondent took out letters of administration to his estate on June 30, 1964, and commenced this action, claiming £175 arrears of the annuity, an order for specific performance of the continuing obligation to pay the annuity and a declaration that the appellant was liable to pay the plaintiff the annuity. C. A. Settle Q.C, and James FitzHugh for the appellant. ThisAC, AND PRIVY COUNCIL order of the Court of Appeal gives the respondent more than she is entitled to. In this case the administratrix and the person for whose benefit the agreement was made happen to be the same person, but they might be different persons. The cause of action is between the estate of the deceased and the other party to the contract. The plaintiff in an action should be given the appropriate remedy to compensate him. Specific performance, which is an alternative remedy to damages, is given when money is not an adequate remedy, But if a plaintiff is not entitled in law to be awarded any damages, he cannot be given specific performance. Suppose X covenants with A to make a gift to a charity, which is of no benefit to A, then A cannot get an order for specific performance, though in the case of a wedding present ordered and paid for by A for delivery to B the shop is acting as A’s agent. But here the agreement gave the deceased an unenforceable promise by the appellant to pay the annuity to the respondent, and his administratrix cannot enforce a promise which he could not have enforced himself. To take the simple case of a sale by A to B, in consideration of which B agrees to pay the purchase price of £1,000 to X. If B is in breach of his contract the only remedy for A is to sue him for damages for the breach. Those damages will only be nominal damages of 40s., since no loss is usually caused to A by the fact that X has not received the money.’ The present case is not one in which the estate of the deceased suffers any loss by reason of the appellant’s breach of contract. It was never entitled to receive any payment from him. Further, if the respondent is to be entitled as administratrix to have this agreement specifically performed and carried into execution, then the whole agreement must be specifically per- formed and that must include the obligation to discharge the liabilities of the deceased to the named creditors, which must be performed for the benefit of the estate: Fry on Specific Performance, 6th ed. (1921), p. 383, n. 1. The order of the Court of Appeal does not specify whether the payments were to be made to the respondent in her personal capacity or as administratrix. If the former is the case and it is enforceable by her pursuant to R.S.C., Ord. 45, r. 9, it gives her rights not contained in the agreement. If it gives her rights as administratrix to recover more than nominal damages for her benefit in her personal capacity, the effect is to create a trust which is not created by the agreement. 61 HL.) 1967 Beswick ve Beswick62 HL.) 1967 Beswi ve Beswick HOUSE OF LORDS (1968) In re Miller's Agreement" is the latest case bearing on the present problem. It indicates that the agreement conferred on the widow (the respondent) no rights enforceable at law and that section 56 of the Law of Property Act, 1925, does not enable her to enforce the covenant. What Denning L.J. said in Smith and Snipes Hall Farm Ltd.’ was incorrect. In White v. Bijou Mansions Ltd. Simonds J. and the Court of Appeal did not hold that under section 56 every person who fell within the “scope and benefit” of a contract was entitled to sue, though not a party to the contract. Section 56 replaced section 5 of the Real Property Act, 1845, which was repealed by Schedule 7 to the Act of 1925. It applied only to covenants running with the land: Forster v. Elvet Colliery Co. Ltd. affirmed in the House of Lords: Dyson v. Forster® Section 5 was expressed to relate to “‘ any tenements or hereditaments,” that is, the land. The Act of 1925 was a consolidating Act and that indicates that section 56 was meant to have the same effect as its predecessor. There is no authority for applying section 56 to such a case as this, and it cannot apply to this type of agreement at all. The view expressed by Denning L.J. in Drive Yourself Hire Co. (London) Ltd. v. Strutt * was incorrect. From Chelsea and Walham Green Building Society v. Armstrong’ and what Simonds J. said in White's case® it would appear that section 5 of the Act of 1945 was concerned with persons named in the indenture as parties, and that being in fact a party to the agreement was not enough. Stromdale & Ball Ltd. v. Burden*® was very far removed from the present case and so was White v. John Warwick & Co. Ltd.” The appellant’s case is supported by Scruttons Ltd. v. Midland Silicones Ltd.” It'is not open to anyone to say that the House of Lords did not adopt the decisions relating to section 56. A consolidating statute like the Act of 1925 is assumed not to be intended to alter the law: Maxwell on the Interpretation of Statutes, 11th ed. 4 [1947] Ch. 615; [1947] 2 All 78. "? [1949] 2 K.B. 500, 517; TLR. 628; [1949] 2 All ER. Cc. 5 1937] Ch. 610; 53 TLR. 88; [1937], 3 AL ER, 2% Ch. 351; 54 T.LLR. 458; [1938] 1 All ER. 546, C. i [1908] | K.B, 629; 24 TLR. 265, C.A. 5 [1909] A.C, 98; 25 TLR. 166, HL(B). ® [1954] 1-Q.B. 250, 269-275; ol [1953] 2 All E.R. 1475, i951) Ch. 853; psu, 2TLR. m1; ER, ead 225. * [1952] Ch. 2, if1951 2TLR. 1192; {19821 1 A 1953) 1 WLR 1285; [1953] 2 AIER. 1021, C. 4 [1962] A.C. 446, 467, 473, 494.w AC, AND PRIVY COUNCIL (1962), p. 23. The best meaning for the section was found by Simonds J. in White v. Bijou Mansions Ltd.* The result is that it has no application here and the respondent cannot recover in her personal capacity. Therefore the only action with which the House is concerned is that of the respondent as the administratrix. In that capacity she is not entitled to specific performance: see Ryan v. Mutual Tontine Westminster Chambers Association.** When damages are inadequate as a remedy the court may grant specific per- formance to the person who has the cause of action—that last point is important. But the court cannot do so in the circum- stances of the present case. It cannot grant an order for specific performance for the benefit of someone who was not a party to the contract, since nominal damages are adequate to compensate the estate for the breach of contract. Here, as in In re Schebsman," there was no enforceable trust. Section 56 being out of consideration, the court, envisaging this as an attempt to obtain payment to someone not a party to the contract, will not grant the personal representative specific performance. Here an order in favour of the respondent in her personal capacity would infringe the rights of the creditors of the estate. Such an order should not be made and the estate is entitled to nominal damages only. That is the strict position, because the respondent in her personal capacity is not in any position to enforce her claim, for the Court of Chancery would never grant specific performance to give the benefit of a contract to a person, whether a party or not, which he could not get for himself. Hohler y. Aston}** a case of an executory contract, is distinguishable from this case, and so is Keenan v. Handley, where the mother would now be held to have been agent or trustee for her infant daughter. Brough v. Oddie ** is relied on. The courts will not grant specific performance to enforce a contract between A and B in favour of C, although it is otherwise if the contract is partly in favour of B and partly in favour of C. Peel v. Peel*® was an interlocutory application and decided nothing. As to the availability of damages in a Chancery action at the time of this case and of Keenan's case,'" see Fry on Specific Performance, p. 601. Adderley v. Dixon ** is distinguishable. 42 [1937] Ch. 610. 14 (1864) 12 W.R. 930; 2 De GJ. 120 [1893] 1 Ch. 116, 124; 9 & Sm. 283. TLR. 72, CA. 38 (1829) 1 Russ. & M. 55. 38 [1944] ‘Ch. 83; 60 TLR. 128; 38 1869) 17 W.R. 586, 1943] 2 All E.R. 768, C.A. * 2 De GJ. & Sm. 2 388 [1920] 2 Ch. 420, 424, 28 (1824) 1 ‘Si 607. 63 HL) 1967 Beswick ve Beswick64 HL.) 1967 Beswick Beswick . HOUSE OF LORDS [1968] The courts will not order specific performance so as to give a party to a contract greater rights than he has under it, nor will it give a third party rights which he did not previously have; nor will money due under a contract be ordered to be paid to the promisee on the basis of a trust, which did not previously exist, for the benefit of a third party. James FitzHugh following. A promisee cannot be a trustee for himself and during his lifetime he has complete freedom to enforce a promise or not as he may think fit, “On his death, a trust arises for the benefit of persons entitled to his estate. His personal re- presentative must do his duty to that estate and enforce all rights for its benefit: Zn re Sinclair's Life Policy.* Here such damages as are recovered by the administratrix for the benefit of the estate she must hold for its benefit and, if the administratrix elects to take an order for specific performance, she deprives herself of the right to get damages for the benefit of the estate. It is her duty to the estate not to deprive herself of that possibility. The persons who have an interest in the estate are the persons who are beneficially entitled to its assets; the administratrix owes no duty to third parties. In this case damages cannot be considered an inadequate remedy, because the estate cannot get more. See also In re Engelbach*® and In re Schebsman.** Hugh Francis Q.C. and D. G. Nowell for the respondent. The main point is whether the administratrix of the deceased in her representative capacity and therefore as a party to the contract by representation is entitled to sue on the contract and have it specifically performed. It has always been admitted that the administratrix as such has a right to sue on the agreement but it is said that the only remedy is to recover nominal damages. But she also has the: common law remedy of suing for arrears of the amounts as they fall due and for a declaration of liability for future payments. She is further entitled to the equitable remedy of specific performance, and that is asked for because it is more beneficial to the respondent and will avoid a multiplicity of actions. The Vice-Chancellor was dissuaded from finding for the respondent by Miller’s case.™* It is not submitted that that case was wrongly decided, since the daughters there could neither sue nor compel the personal representative of their father to sue. ‘The following submissions are made: (1) This contract is one 19 [1938] Ch. 799, 802, 805; 54 21 [1944] Ch. 83, 100. TLR. 918; [1938] 3 AIL E.R. ‘124. 2 [1947] Ch. 615. [1924] 2 Ch. 348, 355-356,AC. AND PRIVY COUNCIL of a kind of which the courts of equity have habitually granted specific performance; it is a contract for the sale and purchase of a business, part of the price of which was the payment of an annuity to the vendor’s widow. (2) The appellant has received the full benefit of the contract, and in such a case a court of equity will consider itself bound to ensure that he will fulfil his part of the agreement because elementary justice requires it: see Hart v. Hart.* (3) The appellant’s refusal to pay the respondent the annuity is unconscionable and a breach of faith; it is hard to imagine a case more appropriate for the intervention of equity. (4) The respondent is entitled to specific performance on the ground of mutuality. If the deceased vendor and the respondent had both been killed in a road accident before the business was handed over, the defendant as purchaser could have obtained specific performance of the contract: see Mortimer v. Capper ** and Jackson v. Lever.* ; (5) The remedies at common law are either inadequate or less convenient than the equitable remedy, since the common law remedy would entail a multiplicity of actions: see Swift v. Swift.?* The argument for the appellant confuses two questions: (a) whether the widow as administratrix has a cause of action; and (b) whether it is proper for the administratrix in a case of this sort to bring proceedings at the cost of the estate. In this case the respondent suing as administratrix is the only beneficiary of the estate. As to the duty of a legal personal representative with respect to the deceased’s contracts, see Ahmed Angullia v. Estate and Trust Agencies (1927) Ltd." There is no question here of any right to sue which might result in a valuable asset for the estate. No question of administration arises. The annuity was not payable to the deceased or to his estate: see In re Schebsman.?* The payment of the annuity to the widow in the present case is not dependent on the payment of the debts set out in the agree- ment. As to this see Fry on Specific Performance, 6th ed. (1921), p. 383, n. 1, and pp. 390-2, paras. 839-842. The proper order is for specific performance of the agreement to pay the annuity and, as to the rest, the court can give liberty to apply. Drimmie v. Davies* supports the submission that specific 23 (1881) 18 Ch.D. 670, 684-685. 21 [1938] AC. 624; 54 TLR. 24 (1782) 1 Bro. 156. 831; [1938] 3 All E.R.'106, P.C.” 1792) 3 Bro.C.C. 605. 8 [1943] Ch, 366. 26 (1841) 3 InEq.R. 267, 278. ” [1899] 1 Ir.R. 176, 186, 190. 65 HL.) 1967 Beswick Beswick66 HOUSE OF LORDS [1968] H.L.(E) performance is the proper remedy here. Ahmed Angullia’s case *° 1967 shows that the prima facie duty of the administratrix is to see “Beswick that the contracts entered into by the deceased are carried out, Beewick een though they may be disadvantageous to the estate. —_— Seton on Judgments and Orders, 7th ed. (1912), Vol. IL pp. 2212-3 contains a form of order for specific performance of an agreement to grant an annuity (Keenan v. Handley"). The order was in favour of the defendant’s former mistress and her infant daughter. Engelbach’s case ** and Sinclair’s case ** seem to be derived from a statement of Lord Esher M.R. in Cleaver v. Mutual Reserve Fund Life Association,** with which Uthwatt J. disagreed in In re Schebsman.* Those decisions turn on the construction of the particular policies and lay down no general principle. As to the enforcement of an order for specific performance under R.S.C., Ord. 45, r. 1, the plaintiff could, if need be, take out a writ of fi. fa. and take steps to levy execution for the arrears of the annuity. Ord. 45, r. 12, applies: see the Supreme Court Practice, 1967, Vol. I, p. 612, and also R.S.C., Ord. 1, r, 9 and Form No. 53 in Appendix A in Vol. II. That form assumes that the order is one directing the plaintiff to pay the sum to the defendant. It would have to be varied to accord with an order to pay the sum to a third party:, see also Vol. I, pp. 594-5, as to section 5 of the Debtors Act, 1869. As to R.S.C., Ord. 45, r. 9, there is no authority throwing light on its precise scope or purpose, but it may well have been intended to apply to a judgment obtained by a plaintiff suing in a representative capacity on behalf of several persons. After judgment the members of the class, though not parties, would be entitled to the benefit of the judgment. As to section 56 of the Law of Property Act, 1925, it is not submitted that it “delivered a mortal blow” to Tweddle v. ‘Atkinson,** but rather that it cut off one of its limbs. Section 5 of the Act of 1845 eliminated a technical rule of the common Jaw relating to indentures that a person who was not named as a party to an indenture could not take an interest under it, although he was expressed to be within it: see Forster's case*’ and Grant v. Edmondson.** Section 5 is not limited to covenants running with the land. 30 [1938] aos 824, alee 35 [1943] Ch, 366, 372. 312 De 38 (1861) 1 B, & S, 393. 32 [1934] 9.Ch, San et [13081 1 KB. 629, 635, 637, 38 [1938] Ch. 799. 639; [1909] A.C. 98. 34 [1892] 1 QB. 147, 157; 8 38 [1931] 1 Ch. 1, 15, 28, CA. TLR. 139, CA.AC. AND PRIVY COUNCIL For example, suppose A selling a house to C was on good terms with his neighbour B and, knowing that he greatly admired certain trees in the garden of the house, took from C a covenant with himself and with B not to cut down those trees so long as B was the owner of the adjoining land. That would not be a covenant running with the land but there is no reason why B should not be entitled to enforce it. As to section 56 of the Act of 1925, neither the Law of Property Act, 1922, nor the Law of Property (Amendment) Act, 1924, contained any reference to section 5. These Acts which contained all the substantial enactments later incorporated in the consolidation Act of 1925 contain nothing corresponding to section 56. As to the character of the consolidation Act, see Grey v. Inland Revenue Commissioners.°® Such an Act, said Lord Simonds, is presumed not to be intended to alter the law, but the Act of 1925 was not a normal consolidation Act. It brought about radical changes in the law. One cannot ignore words in it or refuse to give them their plain meaning. At bottom the matter is one of the construction of the words. Section 56 of the Act of 1925 applies only to covenants and agreements which satisfy four conditions. (1) They must be contained in an “instrument” and that includes any writing. (See Stroud’s Judicial Dictionary, 3rd ed. (1952), Vol. I, p. 1472.) The present document is an instrument. (2) The covenants or agreements must be “ respecting land or other property.” A simple covenant to pay an annuity is not such a covenant. Here the agreement was respecting property, because it was an agreement to pay an annuity as part of the price for the sale of a business. Further, the annuity was charged ‘on the business. Section 56 is not confined to real property. 3) Section 56 applies only to covenants or agreements made directly for the benefit of a person who is not a party to it. It is not enough that the person should incidentally derive a benefit from it. One cannot take the object of section 56 to be the same as that of section 5 of the Act of 1845. (4) The covenant or agreement must be legally enforceable. Here there is an agreement enforceable by the deceased or his administratrix. Subject to the fulfilment of these four conditions the third party can enforce the agreement. They are the sole conditions which can be implied or inferred from the language of section 56. 8 [1960] A.C. 1, 13; [1959] 3 W.L.R. 759; [1959] 3 AILE.R. 603. H.L(E.), 67 HLL.) 1967 Beswick ve Beswick68 HL) 1967 Beswick Beswick HOUSE OF LORDS [1968] It is said that the covenant or agreement must purport to be made with the third person: see White v. Bijou Mansions Ltd:*° That view of section 56 (1) of the Act. of 1925 is open to the objection that it makes everything depend on mere form and not on substance, so that the addition of a very few words to the agreement would have enabled the respondent to sue in a personal capacity. If that were so, the plaintiff in Stromdale & Ball Ltd. v. Burden ** could not have succeeded: see also Drive Yourself Hire Co. (London) Ltd. v. Strutt? The court can only give effect to the plain words of the section. It is hard to put any limitation on it, save for the four rules already formulated. D. G. Nowell following. As to the insurance cases see Waters v. Monarch Fire & Life Assurance Co.° a case of a party to a contract securing something in addition to his own particular loss. Castellain vy. Preston‘* shows that a person who enters into a contract which contemplates payment may recover for breach and is not limited to his own particular loss: see also Lloyd’s v: Harper*® and Kenny vy. Employers’ Liability Assurance Corporation.* There is here a claim for a declaration which is a discretionary remedy: see R.S.C., Ord. 15, r. 16, and Drimmie v. Davies.‘ Specific performance is the appropriate remedy here. The position with regard to the rule that a third party cannot sue was correctly stated by Lord Denning M.R. in the court below.** Section 25 (6) of the Judicature Act, 1873, enabled the assignee of a legal chose in action to sue in his own name. Section 136 of the Law of Property Act, 1925, dealing with legal assignments of things in action does not cover every case of assignment, only absolute assignments in writing. So where there is an equitable assignment the action must be brought in the name of the assignor who must be joined by the assignee either as co-plaintiff or co-defendant. Section 56 (1) of the Act of 1925 should be given the plain meaning which the words bear. C. A, Settle Q.C. in reply. - In section 56 of the Act of 1925 or” is disjunctive in the phrase “the benefit of any . . . agree- 40 [1937] Ch. Coe 624. 46 [1901] 1 Ir.R. 301, 334, 336, 41 [1952] Ch. BT ]-338, 339-340. 42 [1954] Toe 350, 264, 271-272. 2 idee be 1Ir.R, 176, 188. 5 El. & BI. 870, 880. s [1966] Ch. 538, 357; [1966] 3 as “ (1883) if Q.B.D. 380, 398-399. ee 396; [1966] 3 All ER. i, 45-16 Ch.D. 290, 321.AC. AND PRIVY COUNCIL ment over or respecting land or other property.” The section stelates to benefit arising out of an agreement as to existing property. It is purely a conveyancing section and appears in the part of the Act relating to conveyances. The agreement in the present case is not one respecting property. An agreement to pay part of the purchase price of a business is not such an agreement: see Miller’s case.*° The widow had no rights enforce- able at law. If the alleged beneficiaries cannot themselves sue on the covenant, the fact that there is a charge supporting the covenant does not help them. The legislation did not intend that section 56 should make such a fundamental change in the law as would be effected if the respondent’s very liberal construction were placed upon it. The section is dealing with conditions, rights of entry and the like and its language is very appropriate to deal with what is merely conveyancing. It is intended to enable a third party to be given a benefit, although he may not be named as a party to the conveyance or other instrument. It is purely a conveyancing section. It is not a section under which a third party can claim rights created by a document to which other persons are parties and it does not avoid the necessity for consideration. Anything can be conveyed—realty, personalty or a chose in action and the title is perfectly good. Under section 136 of the Law of Property Act, 1925, a chose in action can be assigned to a third party, thereby creating a debt on which the assignee can sue. If there had been such a fundamental change in the law, the effect of which was to overrule Tweddle v. Atkinson™ by statute the House of Lords in Scruttoris Ltd. v. Midland Silicones Lid.°* could not have shut its eyes to such a point as this, and the only inference to be drawn from that case is that everything which Denning L.J. said in Smith and Snipes Hall Farm Lid. v. River Douglas Catchment Board ** and in the other cases cited to the House of Lords was rejected by them. In Scruttons Ltd. v. Midland Silicones Ltd.* the point as to section 56 of the Act of 1925 was on the pleadings (paragraph 21 of the points of defence): see the record on the appeal to the House of Lords, appendix, p. 11. See also Green v. Russell.** The Act of 1925 was a consolidating Act which was not $5 [1987] Ch, 615, 623. so 1B&s. 51 [1962] AG a6, 52 [1949] 2 K.B. 500. AMER. 525, CA. 446. 226, 233, 239- 17; [1959] 2 69 HL) 1967 Beswick v. Beswick70 HL.) 1967 Beswick ve Beswick HOUSE OF LORDS [1968] making changes in the previous law. The alteration in the law suggested would have far reaching implications. The law as laid down in Miller's case‘* has been taken as the basis of innumerable agreements, For 42 years the Act of 1925 has been construed as having the meaning for which the appellant contends and that should not be departed from now, especially as to do so would have wide ramifications over a large area. If the courts will not make an order for specific performance giving a third party rights which he did not have before the making of the order, neither will they do so in the case of a contracting party. Nor will they constitute a trust where a trust did not previously exist, if the contract cannot be specifically performed without so doing. What Danckwerts L.J. said in the Court of Appeal ** in the present case cannot stand. The cause of action in the administratrix arose out of the breach of contract by the appellant in not paying the annuity to the widow. The widow had no right to sue and there is no trust in her favour. For the circumstances in which specific performance will be granted see Fry on Specific Performance, 6th ed., pp. 21-22, para. 48. In this case the cause of action is in the administratrix, who can claim damages, which afford the estate an adequate remedy, so that there is no room for specific performance. Keenan's case,*" the case of a mother acting as agent for her illegitimate daughter, is distinguishable from the present case. Their Lordships took time for consideration. June 29. Lorp Rew. My Lords, before 1962 the respondent’s deceased husband carried on business as a coal merchant. By agreement of March 14, 1962, he 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 husband 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 order 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 $8 [1947] Ch. 615. 572 De GJ. & Sm. 283. 58 [1966] Ch. 538, 561.AC. AND PRIVY COUNCIL 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 nominee so that he would hold the money 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. I think that In re Schebsman* was rightly decided and that the reasoning of Uthwatt J.2 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, + [1924] 2 Ch. 5 [1943] Ch. 366; 59 TLR. 443; 348. 2 1944) Ch. $3: 60 TLR. 128; [1943] 2 AUER. 3 [1943] 2 All ER. 768,72 HL) 1967 ‘Beswick Beswick Lorp Rerp HOUSE OF LORDS [1968] 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. It is 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. What then is A’s position? I assume that A has not made 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 any time grant a discharge to B or make some new contract with B. If there were a trust the position would be different. X would 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AC, AND PRIVY COUNCIL 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 require 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. Jf 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 Tequire 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 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 BB HL) 1967 Beswick Beswick Lorp ReipHOUSE OF.LORDS [1968] 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, in a very large proportion of cases such a 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 5 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.” Before further considering the meaning of section 56 (1) I must set out briefly the views which have been expressed about it in earlier cases. White v. Bijou Mansions Ltd.‘ dealt with a cove- nant relating to land. The interpretation of section 56 was not the main issue. Simonds J. rejected an argument that section 56 enabled anyone to take advantage of a covenant if he could show [1937] Ch. 610; 53 T.L.R. 88; [1937] 3 All E.R. 269.AC. AND PRIVY COUNCIL 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 instrument 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-Parry J. said *: “TI 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 exist.” 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 8 [1937] Ch. 610, 625. ® [1947] Ch. 615, 622. © [1938] Ch. 351, 365; 54 TLR. ® [1937] Ch. 610. 458; [1938] 1 All E.R. $46, C.A. 30 [1949] 2 K.B. 500, 517; 65 + joan Ch. 615; [1947] 2 All oe 628; [1949] 2 All’ E.R.” 179, .R. 78, A. 15 HL) 1967 Beswick v. Beswick Lorp Retp16 HL.) 1967 Beswick Beswick Loap Retp HOUSE, OF LORDS [1968] L.J., 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 56. 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 33 [1947] Ch. 615. 38 [1937] Ch. 61 0. 32 [1954] 1 Q.B. 250; [1953] 3 3 [1951] Ch. 853; [1951] 2 TLR. W.LR. 1111; [1953] 2 ATER. 1475, 312; [1951] 2 All ER. 250. CALAC. AND PRIVY COUNCIL 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 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- Ppriately 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, I 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8 HL@) 1967 Beswick Beswick HOUSE OF LORDS [1968] 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 Hopson. 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 14, 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 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 agreement; second, whether or not the common law rule that a contract such as this one, which purports to confer a benefit on a stranger to the contract, cannot be enforced by the stranger has been to 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 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.”AC. AND PRIVY COUNCIL 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 touched the question raised by the language of section 56 of the Act of 1925. One cannot deny that the view of Lord Denning MLR. ex- pressed so forcibly, not for the first time, in his judgment in this case, reinforced by the opinion of Danckwerts L.J. 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 a$ including “any interest in real or personal 719 WILE) 1967 Beswick Beswick ‘Lorp Hopson80 HL) 1967 Beswick Besiick Lono Hopson HOUSE OF LORDS [1968] 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 y. Bijou Mansions Ltd.**) can scarcely have been unconscious of the section when he said in the Midland Silicones case **: “Tf 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 % [at Ch, 615. ge ee 372; [1960] 2 Ali E.R. 737, w 33.5 54 TLR. 993; [1938] 3. Cy 20 [1962] A.C, 446; [19621 2 ne 958) 2 QB. 226 [1959], 3 WLR. 186; [3962] 1 “all ER. 1, BER 1% [1959] 2 All ER. 525, HL). CA. #1 [1937] Ch. 610. 22 [1962] A.C, 446, 468.AC, AND PRIVY COUNCIL 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 (1) 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 R.S.C., Ord. 45, r. 1, and Ord. 45, r. 9). The peculiar feature of this case is that the plaintiff is not only the personal representative of the deceased 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 28 [1936] Ch. 430. 81 HL.) 1967 Beswick Beswick Lox Hopson