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Status:

Mixed or Mildly Negative Judicial Treatment

*215 Combe v Combe.


Court of Appeal 6 March 1 !1

[1950 C. 3344] [1951] 2 K.B. 215


As"uith# $enningand %ir&ett# '(JJ( 1 !1 Mar( !# 6( DivorcePromise by husband in 1943 to pay wife 100l. a year free of income ta Promise made after decree nisi but before decree absolute!ife"s forbearance to apply to Divorce #ourt for maintenance$o re%uest& e press or implied& by husband for forbearance'ction in 19(0 in )ing"s *ench Division by wife on husband"s promise'bsence of consideration. The principle stated in Central 'ondon( )roperty Trust '$( v( *igh Trees *ouse '$(+1 ,-. /( %( 101and 2o3ertson v( Minister of )ensions+1 , . 1 /( %( 44-# is that# 5here one party has# 3y his 5ords or conduct# made to the other a promise or assurance 5hich 5as intended to affect the legal relations 3et5een them and to 3e acted on accordingly# then# once the other party has ta&en him at his 5ord and acted on it# the party 5ho gave the promise or assurance cannot after5ards 3e allo5ed to revert to the previous legal relationship as if no such promise or assurance had 3een made 3y him# 3ut he must accept their legal relations su36ect to the "ualification 5hich he himself has so introduced# even though it is not supported in point of la5 3y any consideration# 3ut only 3y his 5ord( %ut this principle does not create any ne5 cause of action 5here none existed 3efore7 so that# 5here a promise is made 5hich is not supported 3y any consideration# the promisee cannot 3ring an action( %et5een the dates of decree nisi and decree a3solute on a petition for divorce a hus3and promised his 5ife to allo5 her 111l( a year free of tax( The 5ife for3ore to apply to the $ivorce Court for maintenance# 3ut not on any re"uest 3y the hus3and# express or implied# that she should so for3ear( The hus3and did not pay to his 5ife the payments he had promised# and# after the lapse of seven years# the 5ife 3rought an action in the /ing8s %ench $ivision on her hus3and8s promise to ma&e those payments to her( *216 *eld# that there 5as no consideration for the hus3and8s promise# since 91(: the 5ife had not promised not to apply for maintenance to the $ivorce Court# and 94(: even if she had so promised# she could not have deprived herself of that right 9see *yman v( *yman+1 4 . A( C( 611# as explained in ;ais3erg v( Storr +1 !1. 1 /( %( 11-:7 and also 90(: the 5ife8s actual for3earance to ma&e such an application 5as not made at the re"uest of her hus3and# express or implied( *eld# further# that in these circumstances# the principle stated in Central 'ondon )roperty Trust '$( v( *igh Trees *ouse '$(9supra: and 2o3ertson v( the Minister of )ensions9supra: afforded the 5ife no cause of action( PerAs"uith# '(J( <t 5as unnecessary to express any vie5s on the correctness of the decision in Central 'ondon )roperty Trust '$( v( *igh Trees *ouse '$(9supra:# though he# certainly# must not 3e ta&en as "uestioning it( The decision of the *ouse of 'ords in *yman v( *yman9supra: 5as not to 3e construed as applying only to agreements made 3efore the date of decree a3solute( Per$enning# '(J( *e had al5ays understood that no agreement for maintenance# 5hich 5as made in the course of proceedings for divorce 3efore the date of decree a3solute# 5as valid# unless it should 3e sanctioned 3y the $ivorce Court( <ndeed# he had said so in =manuel v( =manuel+1 ,6. )( 11!# 11-( *e &ne5 that such agreements 5ere often made# 3ut their only valid purpose 5as to serve as a 3asis for a consent application to the $ivorce Court( The reason 5hy such agreements# unless approved 3y the court# 5ere invalid# 5as 3ecause they 5ere so apt to 3e collusive( $ecision of %yrne# J(# approved on the issue of consideration# disapproved on the applica3ility of the principle stated in Central 'ondon )roperty Trust '$( v( *igh Trees *ouse '$(9supra:( A))=A' from %yrne# J( The parties# a hus3and and 5ife# 5ere married in 1 1!# 3ut separated in 1 0 ( >n ?e3ruary 1# 1 ,0# on the 5ife8s petition# a decree nisi of divorce 5as pronounced( >n ?e3ruary # 1 ,0# the 5ife8s solicitor 5rote to the hus3and8s solicitor: @Aith regard to permanent maintenance# 5e understand that your client is prepared to ma&e her an allo5ance of 111l( per year# free of income tax@( >n ?e3ruary 1 # 1 ,0# the hus3and8s solicitor replied that the hus3and had @agreed to allo5 your client 111l( per annum# free of tax@( >n August 11# 1 ,0# the decree

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5as made a3solute( The 5ife8s solicitor 5rote for the first instalment of 4!l( on August 46# and as&ing that future instalments should 3e paid on Novem3er 11# ?e3ruary 11# May 11# and August 11( The hus3and# himself# replied that he could not 3e expected to pay in advance( <n fact# he never made any payment( The 5ife pressed for payment 3ut made no application to the $ivorce Court for maintenance( She had an income of *217 3et5een -11l( and B11l( a year( *er hus3and had only 6!1l( a year( >n July 4B# 1 !1# the 5ife 3rought an action in the /ing8s %ench $ivision claiming from her hus3and 6-!l(# 3eing arrears of payment at the rate of 111l( per year for six and threeC"uarter years( %yrne# J(# held that the first three "uarterly instalments of 4!l( 5ere 3arred 3y the 'imitation Act# 1 0 # 3ut gave 6udgment for the 5ife for 611l( *e held on the authority of ;ais3erg v( Storr1that there 5as no consideration for the hus3and8s promise to pay his 5ife 111l(# 3ut nevertheless he held that the promise 5as enforcea3le on the principle stated in Central 'ondon )roperty Trust '$( v( *igh Trees *ouse '$( 4and 2o3ertson v( Minister of )ensions 0# 3ecause it 5as an une"uivocal acceptance of lia3ility# intended to 3e 3inding# intended to 3e acted on and# in fact# acted on( The hus3and appealed( )ee for the hus3and( The trial 6udge 5as right in holding that there 5as no consideration for this promise 3y the hus3and to pay his 5ife 111l( per annum free of income tax( There 5as no promise 3y the 5ife that she 5ould not apply for maintenance to the $ivorce Court# and# indeed# had she made such a promise there 5ould have 3een no consideration for it# since no agreement 3y her 5ith her hus3and could deprive her of this right: see *yman v( *yman,# as interpreted in the Court of Appeal in ;ais3erg v( Storr!( Though in fact the 5ife did for3ear from applying to the $ivorce Court for maintenance# there 5as no re"uest 3y the hus3and# express or implied# that she should do so# and if the 5ife no5 made that application she 5ould have to explain the long delay in ma&ing the application( %ut %yrne# J(# held that the hus3and8s promise 5as enforcea3le on the principle stated 3y $enning# J(# in Central 'ondon )roperty Trust '$( v( *igh Trees *ouse '$( 6and 2o3ertson v( Minister of )ensions-( %ut the principle stated 3y his 'ordship in those cases cannot of itself give a cause of action( Ahere consideration is an essential part of the cause of action# the doctrine stated in the *igh Treescase B# in the a3sence of consideration# cannot ta&e its place( The doctrine does not decide that a promisee can sue on a promise( <n neither of the t5o cases *218 cited 5as the action 3rought 3y the promisee on a promise( This doctrine# it has 3een said# may 3e used as a shield and not as a s5ord7 it does not decide that a promisee can sue on such a promise( ?inally# no agreement for maintenance made in the course of divorce proceedings 3efore the date of decree a3solute 3et5een hus3and and 5ife is valid# unless it is sanctioned 3y the court: see the o3servations of $enning# J(# in =manuel v( =manuel ( Peter +awlinson for the 5ife( Ahere a promise is given 5hich 9a: is intended to create legal relations# and 93: is intended to 3e acted on 3y the promisee# and 9c: is# in fact# acted on# the promisor cannot 3ring an action against the promisee 5hich involves the repudiation of his promise or is inconsistent 5ith it: see the *igh Treescase11and 2o3ertson v( Minister of )ensions11( Such a promise acts as an estoppel or "uasiCestoppel( <t is 6ust and e"uita3le that if such a promise 5ith those conditions can 3e used as a shield 3y the promisee# he can also use it as a s5ord and sue upon it# and in such case the promisor should not 3e allo5ed to plead that his promise is not 3inding on him: the promisor is estopped from denying his promise( The reasoning 5hich it has 3een esta3lished affords the promisee in such a case a defence# is good to afford him also the 5eapon of a cause of action( Consideration is not necessary in such a case# 5here such a promise has 3een acted on to the detriment of the promisee( +Counsel then contended that from the correspondence it appeared that the agreement of the hus3and to pay the 5ife 111l( a year free of income tax 5as made after the date of decree a3solute(. The agreement having 3een made after the date of decree a3solute# there 5as no agreement not to invo&e the 6urisdiction of the court or to control the process of the court 5hen its 6urisdiction had 3een invo&ed: see the speech of 'ord *ailsham# '(C(# in *yman v( *yman14( Such an agreement 5as not open to o36ection and 5as made for valid consideration( ?urther# in any case# there 5as consideration for the promise: the 5ife for3ore from doing 5hat she 5as entitled to do C to apply to the $ivorce Court for maintenance( This she did in conse"uence of her hus3and8s promise( And thus a for3earance 5as to her detriment# in that at the present time she must apply to the court for leave to ma&e the application# 5ith the pro3a3ility *219 that permanent maintenance 5ould not 3e granted from the date of decree a3solute C some seven years ago( Such for3earance 5as good consideration for the promise and a re"uest for such for3earance# if necessary# 5ill 3e implied on the part of the hus3and( )ee replied( $=NN<N;# '(J( +after stating the facts:. Much as < am inclined to favour the principle stated in the *igh Treescase 10# it is

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important that it should not 3e stretched too far# lest it should 3e endangered( That principle does not create ne5 causes of action 5here none existed 3efore( <t only prevents a party from insisting upon his strict legal rights# 5hen it 5ould 3e un6ust to allo5 him to enforce them# having regard to the dealings 5hich have ta&en place 3et5een the parties( That is the 5ay it 5as put in *ughes v( Metropolitan 2ail5ay 1,# the case in the *ouse of 'ords in 5hich the principle 5as first stated# and in %irmingham# etc(# 'and Company v( 'ondon and NorthC Aestern 2ail5ay Co( 1!# the case in the Court of Appeal 5here the principle 5as enlarged( <t is also implicit in all the modern cases in 5hich the principle has 3een developed( Sometimes it is a plaintiff 5ho is not allo5ed to insist on his strict legal rights( Thus# a creditor is not allo5ed to enforce a de3t 5hich he has deli3erately agreed to 5aive# if the de3tor has carried on 3usiness or in some other 5ay changed his position in reliance on the 5aiver: <n 2e Ailliam )orter D Co( '$( 167 %uttery v( )ic&ard 1-7 the *igh Treescase 1B7 and 'edingham and >thers v( %erme6o =stancia Co( '$( 1 ( A landlord# 5ho has told his tenant that he can live in his cottage rent free for the rest of his life# is not allo5ed to go 3ac& on it# if the tenant stays in the house on that footing: ?oster v( 2o3inson41( >n other occasions it is a defendant 5ho is not allo5ed to insist on his strict legal rights( *is conduct may 3e such as to de3ar him from relying on some condition# denying some allegation# or ta&ing some other point in ans5er to the claim( Thus a government department# 5hich had accepted a disease as due to 5ar service# 5ere not allo5ed after5ards to say it 5as not# seeing that the soldier# in reliance on the assurance# had a3stained from getting further evidence a3out it: 2o3ertson v( Minister of )ensions 41( A 3uyer 5ho had 5aived the contract *220 date for delivery 5as not allo5ed after5ards to set up the stipulated time as an ans5er to the seller: Charles 2ic&ards '$( v( >ppenhaim 44( A tenant 5ho had encroached on an ad6oining 3uilding# asserting that it 5as comprised in the lease# 5as not allo5ed after5ards to say that it 5as not included in the lease: J( ?( )errott D Co( '$( v( Cohen40( A tenant 5ho had lived in a house rentCfree 3y permission of his landlord# there3y asserting that his original tenancy had ended# 5as not after5ards allo5ed to say that his original tenancy continued: ?oster v( 2o3inson4,( <n none of these cases 5as the defendant sued on the promise# assurance# or assertion as a cause of action in itself: he 5as sued for some other cause# for example# a pension or a 3reach of contract# and the promise# assurance or assertion only played a supplementary rEle C an important rEle# no dou3t# 3ut still a supplementary role( That is# < thin&# its true function( <t may 3e part of a cause of action# 3ut not a cause of action in itself( The principle# as < understand it# is that# 5here one party has# 3y his 5ords or conduct# made to the other a promise or assurance 5hich 5as intended to affect the legal relations 3et5een them and to 3e acted on accordingly# then# once the other party has ta&en him at his 5ord and acted on it# the one 5ho gave the promise or assurance cannot after5ards 3e allo5ed to revert to the previous legal relations as if no such promise or assurance had 3een made 3y him# 3ut he must accept their legal relations su36ect to the "ualification 5hich he himself has so introduced# even though it is not supported in point of la5 3y any consideration 3ut only 3y his 5ord( Seeing that the principle never stands alone as giving a cause of action in itself# it can never do a5ay 5ith the necessity of consideration 5hen that is an essential part of the cause of action( The doctrine of consideration is too firmly fixed to 3e overthro5n 3y a sideC5ind( <ts illCeffects have 3een largely mitigated of late# 3ut it still remains a cardinal necessity of the formation of a contract# though not of its modification or discharge( < fear that it 5as my failure to ma&e this clear 5hich misled %yrne# J(# in the present case( *e held that the 5ife could sue on the hus3and8s promise as a separate and independent cause of action 3y itself# although# as he held# there 5as no consideration for it( That is not correct( The 5ife can only enforce it if there 5as *221 consideration for it( That is# therefore# the real "uestion in the case: 5as there sufficient consideration to support the promiseF <f it 5ere suggested that# in return for the hus3and8s promise# the 5ife expressly or impliedly promised to for3ear from applying to the court for maintenance C that is# a promise in return for a promise C there 5ould clearly 3e no consideration# 3ecause the 5ife8s promise 5as not 3inding on her and 5as therefore 5orth nothing( Not5ithstanding her promise# she could al5ays apply to the $ivorce Court for maintenance C may3e only 5ith leave C and no agreement 3y her could ta&e a5ay that right: *yman v( *yman4!# as interpreted 3y this court in ;ais3erg v( Storr46( There 5as# ho5ever# clearly no promise 3y the 5ife# express or implied# to for3ear from applying to the court( All that happened 5as that she did in fact for3ear C that is# she did an act in return for a promise( <s that sufficient considerationF Gnilateral promises of this &ind have long 3een enforced# so long as the act or for3earance is done on the faith of the promise and at the re"uest of the promisor# express or implied( The act done is then in itself sufficient consideration for the promise# even though it arises ex post facto# as )ar&er# J(# pointed out in Aigan v( =nglish and Scottish 'a5 'ife Assurance Association 4-( <f the findings of %yrne# J(# 5ere accepted# they 5ould 3e sufficient to 3ring this principle into play( *is finding that the hus3and8s promise 5as intended to 3e 3inding# intended to 3e acted upon# and 5as# in fact# acted on C although expressed to 3e a finding on the *igh Treesprinciple C is e"uivalent to a finding that there 5as consideration 5ithin this long settled rule# 3ecause it comes to the same thing expressed in different 5ords: see >liver v( $avis4B( %ut my difficulty is to accept the finding of %yrne# J(# that the promise 5as @intended to 3e acted upon@( < cannot find

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any evidence of any intention 3y the hus3and that the 5ife should for3ear from applying to the court for maintenance# or# in other 5ords# any re"uest 3y the hus3and# express or implied# that the 5ife should so for3ear( *e left her to apply if she 5ished to do so( She did not do so# and < am not surprised# 3ecause it is very unli&ely that the $ivorce Court 5ould have then made any order in her favour# seeing that she had a 3igger income than her hus3and( *er for3earance 5as not intended 3y him# nor 5as it done at his re"uest( <t 5as therefore no consideration( *222 <t may 3e that the 5ife has suffered some detriment 3ecause# after for3earing to apply to the court for seven years# she might not no5 3e given leave to apply: Scott v( Scott4 ( The court is# ho5ever# no5adays much more ready to give leave than it used to 3e 9see ?isher v( ?isher01and *asting v( *asting01:# and < should have thought that# if she fell on hard times# she 5ould still o3tain leave( Assuming# ho5ever# that she has suffered some detriment 3y her for3earance# nevertheless# as the for3earance 5as not at the hus3and8s re"uest# it is no consideration( <n Scott v( Scott#5here a maintenance agreement 5as made during divorce proceedings# Scrutton# '(J(# did say that he had no dou3t a3out there 3eing consideration for it 04# 3ut this must no5 3e ta&en to 3e erroneous# having regard to *yman v( *yman00and ;ais3erg v( Storr0,( The doctrine of consideration is sometimes said to 5or& in6ustice# 3ut < see none in this case# nor 5as there any in >liver v( $avis0!or ;ais3erg v( Storr06( < do not thin& it 5ould 3e right for this 5ife# 5ho is 3etter off than her hus3and# to ta&e no action for six or seven years and then come do5n on him for the 5hole 611l( The truth is that in these maintenance cases the real remedy of the 5ife is# not 3y action in the /ing8s %ench $ivision# 3ut 3y application in the $ivorce Court( < have al5ays understood that no agreement for maintenance# 5hich is made in the course of divorce proceedings prior to decree a3solute# is valid unless it is sanctioned 3y the court( <ndeed# < said so in =manuel v( =manuel0-( < &no5 that such agreements are often made# 3ut their only valid purpose is to serve as a 3asis for a consent application to the court( The reason 5hy such agreements are invalid# unless approved# is 3ecause they are so apt to 3e collusive( Some 5ives are tempted to stipulate for extortionate maintenance as the price of giving the hus3and his freedom( <t is to remove this temptation that the sanction of the court is re"uired( <t 5ould 3e a great pity if this salutary re"uirement could 3e evaded 3y ta&ing action in the /ing8s %ench $ivision( The $ivorce Court can order the hus3and to pay 5hatever maintenance is 6ust( Moreover# if 6ustice so re"uires# it can ma&e the order retrospective to decree a3solute( That is the proper *223 remedy of the 5ife here# and < do not thin& she has a right to any other( ?or these reasons < thin& the appeal should 3e allo5ed( %<2/=TT# '(J( < agree( There 5ere t5o points 3efore the 6udge# 3oth clearly stated and 3oth clearly argued( The first# 5hether there 5as consideration for this agreement to pay 111l( a year free of tax# 5as disposed of 3y the 6udge almost in a sentence( *e said in fact that on the authority of ;ais3erg v( Storr0Bthere could 3e no dou3t that the decision in that case applied to the facts of the case 3efore him( After reciting ;ais3erg v( Storr0 # he said: @<n that case it 5as held that the only consideration moving from the 5ife for the hus3and8s underta&ing# 5hich could 3e deduced 3y inference from the circumstances# 5ould 3e an underta&ing 3y the 5ife not to apply to the court for alimony pendente lite or for permanent maintenance# 3ut that any promise 3y the 5ife to refrain from so applying 5as void and unenforcea3le# and the learned 'ords Justices all gave 6udgment to that effect( ((( At first sight that 5ould appear to 3e conclusive# 3ut Mr( 2a5linson# on 3ehalf of the plaintiff# pointed out that the 5hole of the argument in the case of ;ais3erg v( Storr,1# and# therefore# the 5hole matter to 5hich the court 5as directing its attention# 5as concerned 5ith the "uestion 5hether for3earance to apply for permanent maintenance 5as good consideration# and from an examination of the 6udgments in that case# and of the arguments# it plainly appears that that 5as the matter# and the only matter# 5hich 5as 3eing considered in that case@( Then he continued: @%ut Mr( 2a5linson says: 8<n this case it is not suggested that there 5as consideration8@( < have 3een loo&ing at the evidence 5hich 5as given in the court 3elo57 and the agreement# a3out 5hich all this su3se"uent trou3le has arisen# 5as made as early as ?e3ruary in 1 ,0# the decree a3solute in the case not 3eing made until August 11( %ut there does not appear# as < read it# any5here in the evidence a re"uest 3y the hus3and that the 5ife should refrain from going to the court# or a promise 3y the 5ife that she 5ould not go to the court# or any matter of that &ind( <t appears simply to have 3een that after some little tal& in ?e3ruary# 1 ,0# there 5as an agreement come to that the hus3and 5ould pay 111l( a year7 and then the 5ife amended it to 111l( a year free of tax7 *224 and then 3y March ! that 5as recorded in a letter( <t seems on the first point# therefore# that there 5as no consideration for this agreement( <f < may 3e permitted to do so# < 5ill "uote the 5ords of As"uith# '(J(# in ;ais3erg v( Storr ,1: @The only consideration 5hich could 3e deduced 3y inference from the circumstances 5ould 3e an underta&ing 3y the 5ife# in exchange for the hus3and8s underta&ing# not to apply to the court for alimony pendente lite or permanent maintenance7 3ut any promise given 3y her to refrain from so applying 5ould have 3een void and unenforcea3le on the principle laid do5n in *yman v( *yman,4( <n those circumstances < thin& that there is no evidence at all of any consideration moving from the 5ife to the hus3and#

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and that the agreement in the document is not a 3inding contract@( The 6udge# as < said# dismissed this matter in a sentence 3y saying that the la5 5as so clear that it 5as not possi3le for the case to 3e argued on that ground( Aith regard to the second point# < thin& that the description given 3y Mr( /ee of the doctrine enunciated in the t5o cases to 5hich $enning# '(J(# has referred# as one to 3e used as a shield and not as a s5ord# is very vivid( $enning# J(# in Central 'ondon )roperty Trust '$( v( *igh Trees *ouse '$(#concluded his 6udgment 5ith these 5ords,0: @< prefer to apply the principle that a promise intended to 3e 3inding# intended to 3e acted upon# and in fact acted upon# is 3inding so far as its terms properly apply@( <f a hus3and 5ho admittedly had entered into an agreement of this &ind 5ere in some 5ay to try and ta&e advantage of it# the doctrine 5ould apply( So far as the 5ife is concerned# it 5ould appear to 3e plain that her rights of applying to the court for maintenance are still theoretically in full force# for in ?isher v( ?isher'ord ;reene# M(2(# discussing Scott v( Scott,,# said ,!: @Scrutton# '(J(# expressed his conclusion 5here he said: 8Aithout going through the other cases# seven or eight of 5hich < have referred to 5hile counsel have 3een arguing this case# < thin& in this particular case the application ought to have 3een made 5ithin a reasona3le time after the decree for dissolution# and < see nothing 5hatever in the circumstances of this case to 6ustify an application 3eing made seven years after *225 the decree8@( Then 'ord ;reene# M(2(# continued: @*e carefully refrained from saying that in any circumstances seven years 5ould have 3een too long( Aarrington# '(J(# is e"ually cautious in the language 5hich he used( <t seems to me that that authority does not in any 5ay preclude us from saying that# on the facts of any particular case# a reasona3le time may 3e as much as seven years or even longer@( Mr( /ee argued that if an application 5ere made to the court at this date for maintenance# it 5ould 3e necessary to explain the long delay in the ma&ing of the application( As one of the material circumstances for the court to consider# < cannot conceive of a 3etter one than that the 5ife mista&enly relied upon an agreement 5hich# much to her surprise# 5hen it came 3efore the court 5as held to 3e invalid( <n all those circumstances < agree 5ith the 6udgment 5hich has 3een given( The trial 6udge 5as certainly right in saying that there 5as no consideration for the agreement7 and < thin& that he misunderstood and misapplied the principle laid do5n in the t5o cases 5hich have 3een cited( ASHG<T*# '(J( < agree 5ith my 'ords and 5ould add nothing 3ut for the fact that 5e are disagreeing 5ith the 6udgment of %yrne# J( The 6udge has decided that# 5hile the hus3and8s promise 5as unsupported 3y any valid consideration# yet the principle in Central 'ondon )roperty Trust '$( v( *igh Trees *ouse '$( ,6entitles the 5ife to succeed( <t is unnecessary to express any vie5 as to the correctness of that decision# though < certainly must not 3e ta&en to 3e "uestioning it7 and < 5ould remar&# in passing# that it seems to me a complete misconception to suppose that it struc& at the roots of the doctrine of consideration( %ut assuming# 5ithout deciding# that it is good la5# < do not thin&# ho5ever# that it helps the plaintiff at all( Ahat that case decides is that 5hen a promise is given 5hich 91(: is intended to create legal relations# 94(: is intended to 3e acted upon 3y the promisee# and 90(: is in fact so acted upon# the promisor cannot 3ring an action against the promisee 5hich involves the repudiation of his promise or is inconsistent 5ith it( <t does not# as < read it# decide that a promisee can sue on the promise( >n the contrary# $enning# J(# expressly stated the contrary( Neither in the *igh Treescase ,-nor in Minister of )ensions v( 2o3ertson,B *226 9another decision of my 'ord 5hich is relied upon 3y the plaintiff: 5as an action 3rought 3y the promisee on the promise( <n the first of those t5o cases the plaintiff 5as in effect the promisor or a person standing in the shoes of the promisor# 5hile in the second the claim# though 3rought 3y the promisee# 5as 3rought upon a cause of action 5hich 5as not the promise# 3ut 5as an alleged statutory right( Then it is said for the 5ife that the hus3and8s agreement to pay 111l( a year 5as supported 3y good consideration# 5hich consisted either of an implied underta&ing 3y the 5ife not to apply to the court for an order for permanent maintenance# or of an actual for3earance so to apply( As to the first of these# if the agreement 5as made 3efore the decree a3solute *yman v( *yman, # 3eyond "uestion# decided that such agreement to a3stain from resorting to the court is not valid consideration( <t is said# ho5ever# first that the material agreement 5as not made 3efore the decree a3solute# 3ut 5as made after# and that such an agreement made after the decree a3solute is not open to o36ection and is made for valid consideration( Alternatively# it is argued that even if such an agreement is not good consideration# an actual for3earance to apply to the court# is( As to the first of these points# in my 6udgment the material agreement 5as made shortly after the decree nisi and long 3efore the decree a3solute( The correspondence after the decree a3solute contained merely a re"uest 3y the 5ife that an agreement assumed to have 3een validly made in the previous ?e3ruary should 3e carried out 3y means of "uarterly payments# follo5ed in the >cto3er letters# 3y a consent 3y the hus3and to pay "uarterly 5ith a suggestion of different "uarter days( This cannot# in my vie5# constitute a contract C a contract made after the decree a3solute7 3ut if it 5ere so# < consider on the 5hole that *yman v( *yman!1# a decision of the *ouse of

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'ords# is not to 3e construed as applying only to agreements made 3efore decree a3solute( < thin& that its application is perfectly general( <t contains no such limitation in time as has 3een suggested( < am of opinion# further# that *yman v( *yman!1is incidentally inconsistent 5ith the dicta of Scrutton# '(J(# in Scott v( Scott!4( ?inally# < do not thin& an actual for3earance# as opposed to an agreement to for3ear to approach the court# is a good consideration unless it proceeds from a re"uest# express or *227 implied# on the part of the promisor( <f not moved 3y such re"uest# the for3earance is not in respect of the promise( ?or these reasons# and for the others given 3y my 'ords# < agree that the appeal should 3e allo5ed(

Representation
Solicitors: %rai&enridge D =d5ards7 'ee D )em3ertons('ppeal allowed. ,#. -. .. /

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