Lecture notes
Doctrine of Consideration - Certainty/Vagueness
- Module
- Law of Contract
- Institution
- University Of Sussex (UoS)
Doctrine of Consideration - Certainty/Vagueness
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Doctrine of Consideration – Intention to Create Legal RelationsDomestic Agreements
Balfour v Balfour (1919).
A husband worked overseas and agreed to send maintenance payments to his wife.
At the time of the agreement the couple were happily married.
The relationship later soured and the husband stopped making the payments. The
wife sought to enforce the agreement.
The agreement was a purely social and domestic agreement and therefore it was
presumed that the parties did not intend to be legally bound.
‘There are agreements between parties which do not result in contracts within the
meaning of that term in our law…and one of the most usual forms of agreement
which doesn’t constitute a contract appears…to be arrangements which are made
between husband and wife…’ – per Lord Atkin at 578.
Pettitt v Pettitt (1970).
Mrs Pettitt inherited a house in which her and her husband lived. He spent £800 on
repairs and redecoration of the property.
She sold the house in 1961 and purchased another property which was conveyed
into her name alone. There was some money left from the sale which she gave to
her husband to purchase a car.
They lived in the new house for four years and then divorced. He claimed that he
had a beneficial interest in the property based on improvements made to new
house. He estimated he had spent £723 on the property and claimed to be entitled
to £1,000 from the proceeds of sale.
Mr Pettitt had no interest in the property. The improvements were insufficient to
create an equitable interest in the property.
Lord Diplock – ‘It is common enough nowadays for husbands and wives to
decorate and to make improvements in the family home themselves with no
other intention than to indulge in what is now a popular hobby and to make the
home pleasanter for their common use and enjoyment. If the husband likes to
occupy his leisure by laying a new lawn in the garden or building a fitted wardrobe in
the bedroom while the wife does the shopping, cooks the family dinner or baths the
children, I, for my part, find it quite impossible to impute to them as reasonable
husband and wife any common intention that these domestic activities or any of
them are to have any effect upon the existing proprietary rights in the family home
on which they are undertaken. It is only in the bitterness engendered by the break-
up of the marriage that so bizarre a notion would enter their heads’.
Lord Diplock – ‘to a presumption of a common intention of both spouses that no
legal consequences should flow from acts done by them in performance of mutual
promises with respect to the acquisition, improvement or addition to real or
personal property’.
, Lord Reid – ‘It was argued that the present case could be decided by applying
the presumption regarding advancement. It was said that if a husband
spends money on improving his wife's property, then, in the absence of evidence to
the contrary, this must be regarded as a gift to the wife. I do not know how this
presumption first arose, but it would seem that the judges who first gave effect to it
must have thought either that husbands so commonly intended to make gifts in the
circumstances in which the presumption arises that it was proper to assume this
where there was no evidence, or that wives' economic dependence on their
husbands made it necessary as a matter of public policy to give them this advantage.
I can see no other reasonable basis for the presumption. These considerations have
largely lost their force under present conditions, and, unless the law has lost all
flexibility so that the Courts can no longer adapt it to changing conditions, the
strength of the presumption must have been much diminished. I do not think that it
would be proper to apply it to the circumstances of the present case’.
Merritt v Merritt (1970).
Presumption in Balfour will not always apply.
A husband left his wife and went to live with another woman.
There was £180 left owing on the house which was jointly owned by the couple. The
husband signed an agreement whereby he would pay the wife £40 per month to
enable her to meet the mortgage payments and if she paid all the charges in
connection with the mortgage until it was paid off he would transfer his share of the
house to her.
When the mortgage was fully paid she brought an action for a declaration that the
house belonged to her.
The agreement was binding. The Court of Appeal distinguished the case of Balfour v
Balfour on the grounds that the parties were separated. Where spouses have
separated it is generally considered that they do intend to be bound by their
agreements. The written agreement signed was further evidence of an intention to
be bound.
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