Stephen Hedley

Keeping Contract in Its Place--Balfour v Balfour and the Enforceability of Informal Agreements Author(s): Stephen Hedley Source: Oxford
Journal of Legal Studies, Vol. 5, No. 3 (Winter, 1985), pp. 391-415 Published by: Oxford University Press Stable URL: http://www.jstor.org/stable/764516 . Accessed: 20/03/2014 05:47
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KEEPING CONTRACT IN ITS PLACEBALFOUR v BALFOUR AND THE ENFORCEABILITY OF INFORMAL AGREEMENTS
STEPHEN HEDLEY*
A further lineofattack on theapparent and uncertainty conflict thedecisions in among courts has been to seekmoreunderstandable ofthem statement by grouping appellate thefactsin new-and typically butnotalwaysnarrower-categories. The search is for and outcome which(aided by common of fact-situation correlations sense)mayreveal seize on one rather thananother ofthecompeting One mayeven whencourts premises. stumbleon the trail of why theydo . . . The process is in essence the orthodox and reformulating-but of making undertaken distinctions, technique systematically; insteadof beingreserved untilfactswhichrefuse to be twisted consciously, exploited force action.The departure from orthodox lies chiefly in by 'interpretation' procedure thedistrust thewidestsweepofgeneralization wordspermit. of,insteadof searchfor, are not desired-if theycan be made so as to Not thatsuch sweeping generalizations 'Some RealismaboutRealism-Respondingto statewhatjudges do. (Karl Llewellyn, Dean Pound'44 Harv L Rev 1222, 1240-1 (1931).) Balfour v Balfour' sounds a simple case. A civil servant posted to Ceylon returnedto England on leave with his wife. When his leave was up, his wife(who from arthritis)stayed behind on medical advice. The husband assessed suffered the sum she would need formaintenanceat ?30 per month,and promised to pay that sum regularlyuntilhe returned.However, soon afterhis returnto Ceylon he wrote to say it would be betterif theirseparation was permanent.The wife sued on the promise of maintenance.Sargant Jdecided in her favour,2 but the Court of Duke and Atkin reversed his decision. LJJ) Appeal (Warrington, The significance of the case is perhaps not obvious froma bare statementof its facts and result.The peculiar featureof the action was thatMrs Balfourwas suing in contract,claiming that Mr Balfour should maintain her not because he had married her but because he had promised he would do so. This was a claim without precedent; and even a brief reading of their lordships' judgments will
*Fellowin Law, Christ's I wouldliketo thank all thefriends who have helped College,Cambridge. with earlierdrafts of this article,and especiallyIan Kirk,Paul Matthews, Ray Hedley and Ann Smart.
I
2 (1919)
beforeSargantJ was a simpledenial of againstliability 35 TLR 476. The argument See n 5 infra. consideration.
[I919]2 KB 57i.
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show how reluctant into the area of theywere to extendthe law of contract matrimonial and duties, in whichit had previously little part.3 playedvery rights there was no danger that MrsBalfour wouldbe left without Moreover, anyremedy; shehad already obtained for restitution ofconjugal andforalimony,4 orders rights incontract andwas claiming as well. a contract. was unanimous inrefusing tofind The court Theyhadno realanswer to Sargant the of andDuke andAtkin for LJJ J'sargument presence consideration; atleastwereprepared to assumethatifnormal MrsBalfour were principles applied, normal must Whatwas needed, was an excusenotto apply All then, principle. win.5 it in husband mere fact the were andwife, three found the that saying parties judges alonedisplaced theinference of a contract. and Duke thatthisfactor Warrington a this for on Parliament had established scheme concentrated LJJ exclusively point: a if intended to substitute and duties and between spouses spouses, particular rights this had to make different scheme very they clear.6 downa general Atkin laying LJ held the sameview,but was morediscursive, to all of 'intention create relations' for Whyhedidthis legal contracts.7 requirement Or he had a he liked broad was unclear. Perhaps simply generalizations. perhaps that were and saw of than his contractual better taking theory colleagues, they grasp to refused a larger For whilethecourtshad previously imagined. stepthanthey this the had excluded where enforce sanctions,8 legal parties deliberately agreements couldnot becausetheplaintiff timethey had deniedliability was thefirst simply
Act I882; and theMarriedWomen'sProperty at all before 3 Husband and Wifecouldnotcontract was alleged(e.g. Hall v Michelmore cases wheresuch a contract (19oI) 18 TLR 33), let alone v McGregor (1888) 21 QBD 424) are veryrareuntilthe 1940s. See n 67 proved(e.g. McGregor to theJustices on application exercisable was statutory, to sue formaintenance infra.The right to matrimonial proceedings (MarriedWomen)Act 1985,s 4) or as ancillary Jurisdiction Summary Causes Act 1857,s 32)(Matrimonial both 4 [19191 2 KB 572. It is unclearwhat advantageMrs Balfourwas seekingby exercising seemsto be thatshe wanted The onlyplausibleexplanation and matrimonial contractual rights. awards at that date were not that maintenance alimony plus ?30 per month;I am informed whichwould leave a contractual be jurisdictional There would sometimes advantages generous. but it is hard to findone on thefactsof actionin a better positionthanan actionforalimony, Balfour. Tuck 21 Canadian consideration: ofthejudges was denying claimthatone or other 5 Some writers Bar Rev 123, 125-6 (i943); Unger,ig Mod L Rev 96, 98 (1956); Hepple [1970] Camb LJ 122, consideration ofsemantics. a matter SargantJ((0919) 35 TLR 476) found 128-9. Butthisis purely to support failure for law remedy notto pursuehercommon in Mrs Balfour's undertaking implicit said in theCourtofAppealwas inconsistent Mr Balfour's credit;and nothing her,viz by pledging and deny with that finding. The Court of Appeal's approach was not to admit agreement itself. ofagreement butto denytheexistence consideration, 6 [1919] 2 KB 575 perWarrington LJ; 577-8 perDuke LJ. 7 [I919] 2 KB 578-9. n 125. 8 e.g.Husseyv Horne-Payne (1879) 4 App Cas 311. See infra
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a new were intended. Balfourv Balfourintroduced provethat legal sanctions for which had notbeenthere obstacle before.9 plaintiffs, little at first. It was notuntil attracted attention Atkin However, LJ'sjudgment in the case law. This new principle is the subjectof this achievedprominence itdiscusses theidea thatthemodemlaw which fallsintofour parts. Firstly, paper, of contract to createlegal relations', and suggeststhat requiresan 'intention whether the courtstryto determine such an intention exists in a whenever to impose their areinevitably driven the ownviewofwhether case,they particular it examines to be enforced. thecase law usually treated Secondly, agreement ought today under the heading 'intentto create legal relations'and shows that a amount of it is irrelevant; ofthecases wouldbe decidedin the considerable many or notthelaw required samewaywhether suchan intent. it suggests that Thirdly, main use is to keep contractin its place; to keep it in the the principle's andoutofdomestic where thejudgesthink commercial it has cases,except sphere I a useful thatthemodern law of'intent to create roleto play.Finally, willsuggest reducesto this:thatwherethe parties weredealingat essentially legal relations' arms' length,promiseswill generally be enforced; but in domesticcontexts, will be imposedonlyif the partyseeking contractual enforcement has liability one side ofthebargainand is simply The already performed seeking reciprocity. an executory courtswillnotenforce there is no agreement. Beyondthis,I argue, ofan 'intention to create requirement legalrelations'.
THE 'PURE' THEORY-LIABILITY INTEND THIS IS IMPOSED ONLY IF THE PARTIES
the early I94o0s' that the requirementof 'intention to create legal relations'
I examine theidea thatthecourts are genuinely interested in whether the Firstly, intended to from their flow and that parties legalconsequences agreement, suggest the testsostensibly aimedat discovering theparties'intentions almost invariably lead thecourtsto impose their viewof a fairsolution to thedispute. By showing thatthelaw is notinterested in 'intention' in theordinary oftheword,I meaning I that am a man down of straw." Few acknowledge running peopletodaywould this 'intent' in its most would talkof'objectively requirement support pureform;
as the first case to introduce the conceptis Lens v Devonshire 9 The onlyothercontender Club, EastbournebeforeScrutton of the case in Wyattv J; and to read that Judge'sreminiscences candidate.But the Kreglinger& Fernau [1933] I KB 793, 8o6, it sounds like a promising Times Law Reportof4 December1914givesa very different incomplete) (admittedly impression. Scrutton of theplaintiff or theincompetence of the Jdid not mincehis wordsover the pettiness but as to the agreement, he simplysaid that no enforceable defendant; contracthad been established. It was nottheoccasionforan important statement ofprinciple, and it does notappear thatScrutton Jgave one. for my arguments in this respect.See material II Nor indeed do I claim any great originality referred to in ns 76 and 77 infra.
10 See n 66 infra.
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ascertained or otherwise the'pure'theory. intention', But,as I willargue modify thearguments fatalto the'pure'theory are notmetby themodifications below,12 to it. All the theories leave the courtwithno alternative but to imposeits own viewwhether theagreement be enforced. should The first makesno provision ofintent for pointto noteis thatthe'pure'theory theparties viewwhether thecase where had no common sanctions should be legal It is irrebuttably had some intention available. that the common presumed parties thatthey did notconsider at all is treated as thematter or other;evidence simply In makes more cases there that the court's difficult." where enquiry something thattheparties was no intention either musthavehad some way,thisinsistence an intention. Not unnaturally, intention forces thecourtsto invent or other they thatthe the one thatleads to the mostreasonable on the ground invent result, mustbe takento be 'reasonable is shown.In people'unlessthecontrary parties theParkers soldtheir houseandmovedinwiththe Parkerv Clark,'4 forexample, in to leavethehouseto theParkers DevlinJfound thattheClarks' Clarks, promise to bind themlegally:'I cannotbelieve ... that the theirwills was intended ifhe so chose,to tell thelaw wouldleavehimat liberty, defendant really thought his mind, thatthey couldtake whentheyarrived thathe had changed theParkers found was indifferent whether theirfurniture and that he they anywhere away, else to live or not'." The oppositehappenedin Coward v Motor Insurers' between an agreement Bureau,'6 wherethe Courtof Appeal were considering to work on hismotor thatone should theother workers drive construction cyclein were to hold not fora contribution return to thecostofthepetrol; they prepared a of is another enforceable. thisagreement example judge UpjohnLJ'sjudgment thathe is butclaiming whyhe thinks liability inappropriate, precisely explaining 'The hazardsof nothis own opinion: out whattheparties intended, onlyspelling the of the incidence as such life, holidays, temporary indisposition, everyday of or shift or of different hours a of of overtime, incompatibility possibility change thatthe one was legally thateither makeit mostunlikely contemplated arising, to work.'" to be carried andtheother boundto carry turns a question whenever is alwaysscopefor there Of course, judicialfictions ofwhattheparties is no clearindication oftheparties' andthere on the'intentions to this cases are particularly had in mind.But 'legalrelations' susceptible actually thematter of do notconsider becausecases wheretheparties sortof treatment, it If are not the are not the the rule, lawyers, parties exception. legalenforceability in theiropinion to occurto themthatthe law wouldbe interested is unlikely
Infra397 et seq. and FoundryWorkers UnionofEngineers [ 1969] I WLR 13 E.g. Ford Motor Co v Amalgamated Bureau [1969] 2 QB 494, 505ab perSachs LJ. 339; and Connellv MotorInsurers' 14 [196o] I WLR 286. 15 Ibid 293-4i6 [1963] 1 QB 259. 17 Per curiamibid,271.
12
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CONTRACT
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the agreement shouldbe enforced. It will be a rarecase in whichtheir whether ofit at all,it does not to bearon thepointat all; iftheythink mindsare brought thatthey clear a intent either if is no reason follow did,there way; they developed Whenthecourt intents coincided. to find intention an to supposetheir as purports it can only be becausethecourt thatlegalliability to legalrelations, thinks should and imposes iton theparties. be present, there when are indications whether theparties intended it is Moreover, liability, all too easyfor them. thecourts to ignore Two maintechniques areusedto ignore wheretheyconflict theseindications withtheviewthecourtwishesto cometo. the can theissue,to maketheindications narrow court arbitrarily Firstly, appear Thus wherethe courtwishesto hold an agreement irrelevant. it unenforceable, will eagerly to indications that the did not point parties envisagelegal action.18 But wherethe courtwishesto enforce, theseindications are dismissed, on the that a lack of intention sue is different from an to impeccable) ground (logically it if was intention action should fail: 'The a that fact that, brought, contracting his poundof fleshdoes not to extract partyis in some circumstances unlikely meanthathe has no right to it'.19 The second technique for ignoring actual manifestations of intention is the if which that of states the have 'to all outward 'principle objectivity', parties thenneither can escape by proving a subjective lack of contracted, appearances' devicefora courtthatwishesto excludeevidence intention.20 This is a useful of an intention withtheone itwishesto find.21 inconsistent Butthis, too,is a rulethe whenitproves inconvenient.22 judgecan ignore I do not denyfor a moment that the partiescan settleforthemselves the whether sanctions will is if be that wish to question legal present. My point they mustdo it clearly,23 do so they and ifthey do notthecourt isforced to imposeits ownviewofwhatis fair intheplaceofthenon-existent 'intentions oftheparties'. The usual responseto arguments such as mineis to denythatthe law ever to concern withtheactualintentions itself oftheparties-a point I will purported return to.24But an argument which I suspecthas strongintuitive appeal to
18 e.g. Jonesv Padavatton [1969] I WLR 328, 337cd (FentonAtkinson v Forray LJ); Horrocks [1976) I AllER 737,746ef(Scarman LJ). v MotorInsurers' Bureau 19 Jonesv Padavatton [1969] I WLR 328, 334bcper SalmonLJ; Albert [1972] AC 301,34oab perLord Cross. 20 See infra, textat n 3421 e.g. Smithv Mansi [1963] WLR 26, 30 (Sellers I LJ) and 37 (RussellLJ); Storerv Manchester CityCouncil[I9741] WLR 14o3, I4o8gh(Lord DenningMR). 22 e.g.Bahamas Oil Refining Co v Kristiansands Tankrederie A/S [1978] I Lloyd'sRep 211,where KerrJheldthatthesigner ofa document was entitled to introduce evidence thathe did notknow he was signing a contractual his failure to do so was one reasonhis claimfailed:215, document; and FoundryWorkers col 2. See also Ford Motor Co v AmalgamatedUnion of Engineering Lane J thought [1969] I WLR 339, 355cd,whereGeoffrey 'impossibleand indeedunreal'the to ignore whattheparties wereactually On thiscase see infra attempt thinking. p 413 et seq. n 125. 23 See infra 24 See infra pp 398 et seq.
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and whichtriesto support thenotion thatthelaw is concerned withreal lawyers, be the awareness' thattheparties intentions, may styled 'background argument: to business arrangements do not, it is true,have any intention as to legal but the less everyone willknowthatthe sanctions are available; sanctions, none whereasin domestic is no such awareness;thatin thelatter, but contextsvthere not the former, as AtkinLJ said in Balfour v Balfour,'The termsmay be varied or renewedas performance repudiated, proceedsor as disagreements and the principles of the common law as to exoneration and discharge develop, and accordand satisfaction are such as to find no place in thedomestic code.'25 And indeedthis argument leads me on to the important in questionwhether, thisdistinction, Atkin about actual intentions or about drawing LJ was talking what the law shouldregardthoseintentions as being.Was he talking, in other ? aboutfacts or aboutpolicy words, In my view, he was plainlytalkingof policy.If his dictumis takenas a offact, statement thentheobviousanswer is thathe was notcomparing likewith like. His dictum the actual flexibility contrasts withthe of informal agreements on contractual business inflexibility theory Certainly, arrangements. inflicts legal arethelast thing remedies theparties to a family think ofas a wayof arrangement of the arrangement; in mostcases literally thelast thing, dealingwithbreaches forfewrelationships couldsurvive a legalaction the one by brought party against other. And someparties a wouldnever as consider remedies at even last all, legal resort. But the situationis not verydifferent in business. Studiesof business that business are their executives indifferent whether show practice26 many constitute are that business regulated agreements binding contracts;27 dealings more by mutual trustand sharedconventions on what constitutes civilized behaviourthan by what partiesare legallyentitled to;28that resortto legal is relatively remedies and is used onlywhenthebusiness relationship infrequent, is at an end;29and thatwhenformal for aredrawn contracts up, thisis frequently A with the of unconnected sanctions.30 purposes quite marriage possibility legal be a sorry for runon thecommon law principles businesses wouldindeed designed but so woulda business runon thosesameprinciples. affair, Willing co-operation in both is normal to legal entitlements without reference essential) (and indeed, spheres. businessand marital I do not wish to pushthisfanciful between comparison similar. too far.Stillless do I wishto arguethatthetwoarebasically relationships the reverse-that since thereare such obviousdifferences My point is rather
2 KB 579; suprap 391. 25 [119191 26 Macaulay, 'Non-contractual Relationsin Business' 28 Am Sociol Rev 45 (1963), abridgedin in references below are to thisabridged 1969) 195; page numbers SociologyofLaw (ed. Aubert, 2 BritJ ofL & Soc 45 (1975). between Businessmen' version;Beale & Dugdale,'Contracts 27 Macaulayloc cit 196-9; Beale & Dugdaleloc cit,50. 28 Macaulayloc cit,200, 204-05; Beale & Dugdaleloc cit,47. 29 Macaulayloc cit,199-204; Beale & Dugdaleloc cit,51, 59. on thisissue. Beale & Douglas loc citdo notcomment 30 Mapaulayloc cit,2o6--o09;
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between the two, there must be something very wrong with a theoretical them only by reference to a presumed, approachthat claims to distinguish and highlyquestionabledifference in willingness to sue. Of unquantifiable coursemostbusinessexecutives are aware thatlegalremedies be may available if the otherside provesuncooperative; but so are most married couples.It is to admitthatthe law pursuesdifferent morerealistic in the two areas, policies It different and accordingly rules. be that I am applies might thought viewing But it is no part of my businessrelationships rose-tinted through spectacles. how frequently businessesquarrel,any more than AtkinLJ was argument on the statement of marital The questionis, makingany frequency arguments. how are such disputesresolved?And the usual answerin both appearsto be that'you can solve any disputeif you keep thelawyers and accountants out of it. Theyjust do not understand the give-and-take neededin business.'3' If lawyers reading this have difficulty in believingthat the business a has such lax attitude to the of their community legal enforceability that be consoled business they may by observing lawyers,too, agreements, in believingit.32As a resultof theirtraining, have difficulty lawyershave morbid are concerned with selectively imaginations.Professionally, they when are with when have broken; only they agreements only marriages they collapsed;with medicaltreatment onlywhen it has gone disasterously wrong; withfactories has injured someone.Their perception onlywhenthe machinery of when people do or do not contemplate is distorted litigation by theirown of when litigation occurs.'To offer a friend a meal is not knowledge actually to invitelitigation', say Cheshireand Fifoot33-as if anyonewho agrees to 'invites This is one indication of theconservative character anything litigation'I of the 'legal relations' test: if the context is one wherelawyersknowcontract has taken place in the past, it is easy to infer that legal relations litigation were 'withinthe contemplation of the parties'; but if it has not, it will be much more difficult. The rule begins to emergeas something which keeps contract in itsplace, making difficult. expansion
ATTEMPTS
TO SALVAGE
THE 'INTENTIONS
OF THE
PARTIES'
Few people,either the 'pure'theory todayor at anydate,wouldcare to defend I have been attacking. But none of the suggested modifications makegood the basic flaw of the 'pure' theory-that in most cases the parties have no intention at all, and the onlypossiblesourceforsuch an intention is the court There are three maintheories. itself.
an American 31 Quotedby Macaulayloc cit,2oo from purchasing agent.
(ioth edn,1981)97. 33 Law ofContract
32 Macaulayloc cit,200; Beale and Dugdaleloc cit,59.
398
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thereis the notionof 'objectiveascertainment of intention'.34 This Firstly, asserts thatthelaw ofcontract is notconcerned withwhatparties theory actually intendbut with what the 'reasonableflyon the wall' would concludetheir intention was. This is quite clearlya rule which(rightly or wrongly) excludes certain ofevidence forms as to intention. Thus itcannot be a defence to thecharge that therewill usuallybe no evidenceat all fromwhich an intention can be it makesmatters worse. deduced;indeed, there is thenotion of'presumptions ofintent': thatthere is no needto Secondly, 'intent to create relations' in businesscontexts because it can be prove legal exists in other contexts.3" But a presumed,whereas no such presumption is a matter of evidence;and,theexceptional case of the'conclusive presumption The presumption of aside, it will alwaysyieldto otherevidence. presumption' innocence in criminal matters will yieldto proof of guilt, thepresumption thata document is properly executed willyieldto proof thatit is not.36 Not so withthe of 'intention to create As I havenotedabove,37 the 'presumption' legalrelations'. courtis boundby theverynature of theexercise to ignore that the proof parties have no intention either is that,whilesuch things as 'common way. The truth intents' sometimes theinsistence ofcontractual thattheparties must exist, theory havehad somecommon intent ensures thatwe aredealing notwithfacts butwith The 'common intent' is not,generally a real thing in the legalfictions. speaking, realworld, buta legalconstruct-afigment ofthecontract lawyer's imagination. The third of the 'intent' modification testis to say thatwe are not concerned withwhether theparties intended butwithwhether 'thereasonable man' liability, in theirplaces would have intended This is an At approach improvement. it.38 least it admitsthatwe are in thefield of values,notfacts;thatwhenliability is it is because the 'reasonable man' intends not the But two it, imposed parties. further First,we must steps are needed beforewe have a workabletheory. remind ourselves of Lord Radcliffe's dictum that 'the ofthe carefully spokesman fairand reasonable man . . . is and mustbe thethecourt When the court itself.'"3 considers what is 'reasonable', it is consulting its own values,not some ideal valuesand notthoseofthecommunity at large.It doesnothave thematerial with whichto do otherwise. we must rid ourselvesof any reluctance to Secondly, Law is thestudy ofwhatjudgesdo, and subject judicialvaluesto objective study. if that studyinvolvesus in statements aboutjudicial values,thenthat is the
on contract But itsfirst use to reconcile a supposed themselves. 34 This notionis as old as textbooks of'intention to createlegalrelations' withtheabsenceofevidence ofthisintention is requirement & Fifoot(ist edn, 1945), unlessWinfield's at 55 Law Q Rev dismissive comments by Cheshire 501-02 (1939) can be readthisway. 35 e.g. Anson(25thedn,1979)68. see generally Crosson Evidence(5thedn,1979)Chap 6. 36 On presumptions, 37 Supra pp 394-6. v Merritt v MotorInsurers' 38 e.g. Merritt [1970] 1 WLR 12Ii at 1213e perLord Denning;Albert Bureau [1972] AC 301 at 339 efperLord Cross. v FarehamUDC [1956] AC 696,728. 39 Davis Contractors
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we mustgo in. Of course,it wouldnotbe surprising direction if,giventhevast to individual create relations' to 'intention judges, they produced legal gives scope with each other. But in my results,utterlyirreconcilable widely differing can be reduced The results to theform has nothappened. contention thissimply belowto statethoserules.40 setofrules;and I willattempt ofa reasonably precise
CLASSIFICATION OF 'LEGAL RELATIONS' CASES-WHAT WAS
BALFOUR ABOUT?
I do notthink thattheconcept of'intention to create legalrelations' Accordingly, declarations on the is a usefulone in a case wherethe partiesmakeno specific that to 'intent create matter. But becauseit has becomeso widely accepted legal ofcontract, element variouscases havebeenrationalized relations' is a necessary haveno necessary withthedoctrine. connection in thoseterms eventhough they if thelaw lackedthe be no different The resultsin thesecases would,however and examplesof themoccurbothbefore and after requirement; 'legal relations' v in the Atkin introduced LJ requirement Balfour Balfour.41 I mustimmediately to drawa distinction between 'intent To explainthepoint, intent'.When the courtsask whether create legal relations'and 'contractual intent'is presentin a particular 'contractual case, theymean 'Does what the as a contract?' refer to all the intended Thus by implication qualify they parties and ask whether theintentions of thelaw of contract oftheparties requirements withthem.'Intentto createlegalrelations', is onlyone such comply by contrast, the suggested thattheparties to mustintend requirement requirement-namely, but legalobligations createnot onlyactualexpectations as well.Thus 'intent to is simply one sub-division of 'contractual createlegal relations' and to intent',42 treat thetwo concepts as interchangeable43 Wherethe can onlylead to confusion. a free a conditional is whether bus pass creates licence or a contract,44 the question issue is whether whattheparties a 'bargain';thelegalissues intended constitutes involved relateto thedoctrine ofconsideration, not'legalrelations', and it is only the court's misleadingstatement that it is discussing whether a 'contractual thatmakesthe issue appearto have anything in common animus'was present45
40 See infra pp 405 et seq.
been said,perhaps morelucidly, 41 Most of whatI say in thissectionhas already by Hepple Camb he triesto explaintoo muchin theseterms, and is often reduced LJ 122, 130-4 [1970]. However, to accusingthejudges of distorting theunderlying if theresults Withrespect, do not concepts. withtheconcepts, thenit is theconcepts we mustdiscard, andquickly. tally withcontract, thatis. On non-contractual interests see 42 So longas we areonlyconcerned property 43 As does Treitel(6thedn,1983) Chap 4, 124 andpassim. 44 As in Gorev Van derLann [1967] 2 QB 31. thepass was 'couched 45 [1967] 2 QB 4If (Willmer LJ); 45de (Salmon LJ). Treiteltalksofwhether in contractual language'(130), whichto me seemsthe same fallacy expressedanother way: the that the pass was not 'couched in contractual a denial of argument language'was essentially consideration.
infra pp 411-2.
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STEPHEN
HEDLEY
to producelegal with 'legal relations'cases. Bus passes are plainlyintended is whatsort.Again,in asking a of somesort;the problem whether consequences statement is a warranty, therelevant with testdoes indeedturn on 'theintention whichthestatement was made';46 butagain,'legalrelations' arenotin issue.The thestatement is whether theperson as promising is to be treated question making thatit is true;ifyes,no one doubtsthatthepromise Further willhe heldbinding. 'contractual examplescould be given;but to sum the matter up in a sentence, intention' triesto classify an expression ofintention but to see ifit-iscontractual, 'intent to createlegal relations' examinesthe questionwhether therewas any ofintention to affect thelegalposition at all. expression On thesedefinitions or superior to as being'right' (whichI do notputforward to makeclearwhatBalfourv Balfour47 else's,but simply was concerned anyone withand whatit was not),48 it is clearthatmany cases discussed the todayunder of'intent to create there: theresults do notproperly heading legalrelations' belong of the cases would be no different whether or not the law possessed such a This can be said, in particular, of all the cases decidedbefore requirement. v in Writers differ which cases Balfour Balfour. they includein the 'legal a but there three classes of case whichall relations' is hardcore of category;49 witha testof'intention to create writers andwhichwouldmeshperfectly include, a genuine intowhat theparties legal relations', enquiry if thattestrepresented As it is, I arguethatthey intended. arebetter keptdistinct. thereare those cases where the alleged 'promise'was plainlynot Firstly, have littleto do withthis: the defendant's seriously 'Legal relations' meant."5 that a is not thelaw willnotenforce, there was which butthat argument promise there at all. The problem within was no promise whichthecourtsare struggling it is based on written is too thesecases is thatlitigation and so all easy pleadings, fortheplaintiff to concentrate on theprecise wordsused,as opposedto whatthey meant to theperson weredirected. to whomthey from White This emerges clearly v Bluett,si wherea son alleged thathis father himfrom on a had released liability him with in for the to bother consideration son's note, promissory ceasing
no morerealthatit is in cases hereis usually 46 Treitel(6th edn, 1983) 124. Of course,the'intent' thatthetwoissuesare distinct. of'intent to createlegalrelations'. My pointis simply 47 [1991] 2 KB 571;suprap 391. over Treitel's thatseems to be at the heartof the argument 48 It is this terminological difficulty of a bargainor an 'exchange constitute mutualpromises statement that'one cannottellwhether thisstatement of theparties' without (6thedn, 1983) 132. Whether gifts' regardto theintention is regardedas obviouslycorrector (as Hepple Camb LJ 130 [1970] seems to think,and is view semantic seemsto be a purely dispute.On neither certainly myview) as a meretautology, to createlegalrelations'. does it tellus anything about'intention who includestheleast 49 Treitel includesthe most material (6th edn, 1983, Chap 4); the writer seems to be Anson(25th edn, 1979) 66-9. The amountof material includedseemsto increase withthedate ofthelast effective revision (as opposedto thelast up-dating). v Lynn(1831) 2 B & Ad 232, 109 5o e.g. Weeksv Tybald (1604) Noy II, 74 ER 982; Guthing ER 1130. 51 (1853)23 LJEx 36.
IN ITS PLACE KEEPING CONTRACT
401
to CB's irritation with ofPollock treatment. ofunfair having Something complaints comes over in his find a formal reason why the promisewas unenforceable a principle is pressed 'The pleais clearly bad. Bytheargument judgment: extempore it bursts. as a bubbleis blownuntil to an absurdity, Lookingat thewordsmerely, the wordsonly,the and following forthe argument, thereis some foundation to supposethatsuchpromises at ... It is ridiculous conclusion maybe arrived couldbe binding.'52 to create A secondclass ofcases whicharetreated legal todayas partof'intent of was in facta merestatement are thosewherethe allegedpromise relations' we no But do made the to which 'promisor' intention, plainly commitment.53 again, which the terms. Ifnothing was saidfrom thisin'legalrelations' nothaveto explain the law infer a there is for of contract then man' could 'reasonable nothing promise, oninthefirst togettowork place."4 all have quitedeliberately excluded The last class ofcases is wheretheparties It at for their seem from (or anyrate, wrong) perverse legaleffect agreement.55may with'intent to create connection me to arguethatthesecases have no necessary if I that relations' test was a the Indeed, thought genuine 'legal legalrelations'.56 I would agreethatthesecases mesh of the parties, into the intentions enquiry But the withsuchenquiry. bythe perfectly factthata ruleoflaw maybe excluded rule is on not that the based those the does show intentions parties itself of canbe excluded that which Contract law frequency assumes rules intentions. bythe arethemselves basedonthose but this should be intentions oftheparties intentions; it for the fiction is. recognized thushave no necessary withthe connection The cases I have been discussing occurred and after thatcase; and bothbefore rulein Balfourv Balfour;examples The Balfour rule had no for clarityof thought they are best kept distinct. the earlier law. is deal withfact-situations in Its function to which counterpart thecourts until thattime. had notbeenbefore
52 (1853) 23 LJ Ex at 37. v Gough[1896] AC 325. 53 e.g.MaddisonvAlderson (1883) 8 App Cas 420; Grainger thefirst two classes ofcase on 'legalrelations' have felttheneed to 'rationalize' 54 Severalwriters grounds--e.g. Treitel (6th edn, 1983) 132-3. But if the 'promisor'said nothingthat could as a promise, to rationalize therefusal be regarded reasonably whytheneedforrefined reasoning of liability?See also G. MacCormackJuridicalRev 70, 80 et seq (1976), who has immense in seeingthedistinction betweena lack of intention to imposemoralsanctions difficulties and a to impose legal sanctions, and supposes that laypeopletoo suffer lack of intention fromthis disability. v Wearwell 55 e.g. Tiverton [1975] Ch 146. textbook writers in the 1920S seized on Rose & Frank v Crompton 56 Interestingly, [1925] AC 445 as clinching (legal effectremovedby parties fromformalbusiness agreement) proofof a of intent to createlegal relations, requirement consigning Balfourto the oblivionof thelaw on married women'scontracts.
402 THE REDEFINITION TWENTIETH
STEPHEN
HEDLEY LAW IN THE
OF THE ROLE OF CONTRACT
CENTURY
in broadterms, theVictorians invented theidea thatthelaw willenforce Speaking it intoa law of but turned as such.They weregivena law ofcontracts, contracts all The withgeneral to contract, principles applicable agreements."7 responsibility for this development is largelythat of Leake, Pollock and Anson,who each a law ofcontract and notmerely collecting majortextbooks expounding produced was ofcontract of The on rules different types contracts.58 subject-matter together of the and consumer business transactions;59 principles general overwhelmingly for work. commercial contract werethuslargely designed contexts. to commercial no formal rulerestricting contract Therewas, however, was provided thelaw wouldenforce The majorlimiton whichpromises by the whichwas takento implythe need fora doctrine of consideration, reformed or 'bargain'. The word 'bargain'naturally two-sidedarrangement suggestsa of flavour commercial transaction. But whileit maywellbe thatthecommercial was of 'bargain'to thetheorists, there theconcept thecases naturally suggested areas. The contrary nothingin the conceptto keep contractto commercial contexts do on in domestic words: to mind a is people simply play argument60 my indeed rarely engage in protractednegotiationsor 'bargaining',but the to thosewho did so. All to be restricted of'bargain' was never meant requirement forthe mustbe givenin exchange it meantwas thateach side of thearrangement thatthey or evensimply werebothgivenas partofthesamearrangement.61 other, seems thecommercial was rarely The reasonwhycontract sphere appliedoutside invoke to thatfewpeoplein other to be simply spheres sought it.62 consideration had acquired a somewhat of this century, By the beginning Its High Priestsdebatedpointswhich, academicwriters. aura amongst mystical No one trivial without werenotsimply bututterly to an outsider, practical import. as or 'detriment' to of 'benefit' been view the had not who up requirement brought could be mutual the that and rule an eleventh commandment, good promises in an could possiblybe interested for each otheras a twelfth, consideration had become an The doctrine on how to 'reconcile'the two rules.63 argument
P.S. Atiyah, TheRise and Fall ofFreedom 57 See generally (1979) 681-93ofContract 58 See Leake (ist edn, 1867); Pollock(ist edn, 1876); Anson(Ist edn, 1879). Previousworks(e.g. forthe mostpartdealingwith Addison,Ist edn, 1847) spentlittletimeon generalprinciples, individual classes ofcontracts. ofmarriage. to thiswas theactionforbreachof promise My assertion 59 The onlymajorexception ofthecase law, and so is unashamedly in thetextis based on myown impressions subjective. 60 Advancedby Unger 19 Mod L Rev 96, 98 (1956); Hepple Camb LJ 122, 13o [1970]. See n 138 infra. and Co [I975] AC 154; Clarke v Earl 61 As in New Zealand ShippingCo v A M Satterthwaite I will be makingas to the Dunraven [1897] AC 59. See pp 405-6 infraforthe assumptions themodern law. whenI cometo consider of'Consideration' meaning 62 See n 59 supra. accountofthisand other debates,see Atiyah 63 For a brief op cit 687-8.
KEEPING
CONTRACT
IN ITS PLACE
403
and the judges, it seems, had no wish to get involved. academic plaything; to the doctrine but by When changecame, it was not by open modifications more devious means. Tort began to take bigger and bigger bites out of New formsof promissory contractual liability sprangup,65on the territory.64 the limited contractual excuse that consideration enforcement-ignoring only of forms all the to denote had used words 'contract' that the Victorians point of the form taken not care was to fracture Great liability.66 promissory while entirely contract, changingits substanceto makingit only one of the couldbe enforced. meansby whichagreements cases while be leftto regulate the commercial could not simply But contract the the ones. From domestic early 1940s onward,plaintiffs equityregulated What outsideits usual context.67 were increasingly seekingto apply contract was now happeningagain and had happened once in Balfour v Balfour68 of otherbodies of law. to invadethe preserves was attempting again: contract it all be bad. The judges so not results of do would the Moreover, letting let into domestic but onlyon theirterms;and they wantedcontract contexts, found the perfectdevice for achievingthis in the solutionAtkin LJ had a doctrine If liability of 'intent to createlegalrelations'. adopted,of postulating on certain it be made out as were thought could facts, appropriate plausibly 'intended';if not, it would be easy to deny the existenceof the requisite I am not sayingthat the judges consciously intention. along these thought The lines,thoughsome of themmay well have done. But this was the effect. relations' doctrine the carte refuse blanche to or gave impose 'legal judges contractualliabilityin unfamiliar contexts-with results I will go on to describe. This judicial activism, then,was simplyforcedby events; it was not the result of any sudden conversionto the academic view that all contracts to create legal relations.Leake had insistedon this requiredan intention
64 The biggestbites wereDonoghuev Stevenson [1932] AC 562; HedleyByrne& Co v Heller & Partners[1964] AC 465; Anns v LondonBoroughofMerton[1978] AC 728; JuniorBooks v Vietchi[I983]I AC 520. the promissory trusts. 65 Principally estoppelsand variousvarietiesof impliedand constructive Most of theseexistedin theVictorian is scarcely version from law, but themodern recognizable theseprototypes. v Money(1854) [I843-86o0] AllER 350, 356ci,where 66 See e.g. perLord Cranworth LC inJorden was contending what the defendant forwould now be described as a promissory estoppel.See R. M. Jackson, 'The Scope oftheterm "Contract"'53 Law Q Rev 525 (1937)generally of thesecases, so faras I am aware,werePetersv IRC [1941] 2 All ER 620 (written 67 The first and hence tax-deductible) maintenance held enforceable and Bramwellv Bramwell agreement matrimonial homein by husbandto letwifeoccupytheformer [1942] I KB 370 (oral agreement held unenforceable). An unusually return fora diminution of alimony writer at perceptive x70 Law Times317 (1930) saw thatcontract couldbe expandedintothedomestic at anytime sphere thecourtswishedit; he/she can be forgiven fornotguessing theprecisecircumstances in which woulddo so, or thatBalfourwouldbe used to keepthisincursion undercontrol. they 68 [I919] 2 KB 571; see 391 supra.
404
STEPHEN HEDLEY
since 1867,69and Pollock70 and Anson7'had followed suit.But this requirement in domesticcontexts was effectively until plaintiffs requirement meaningless theiragreements was as contracts. Indeed,Leake's insistence soughtto enforce based on Civilian writers;72 neither and he was deterred by the absence of of Frauds and a norby the-thought witha Statute thata legal system authority of consideration need a further wouldnot necessarily tolerably precisedoctrine of level, this can be seen as triumph limitingdoctrine." At a superficial of the 'legal relations' academic thoughtover precedent-the introduction forno better academicshad consistently reasonthanthateminent requirement this way requiresus to arguedthat it shouldbe there.But to see the matter for take thatthe courts the requirement searching seriously, genuinely pretend to give up what will usuallybe a the intentions of the partiesand refusing whatmodemtextbooks expectus quite hopelesssearch.And thisis essentially to create legal relations'might to believe. Modem treatments of 'intention if thiswerenot too granda wordforwhat as formalistic, almostbe described amountsto a refusalto examinewhat the judges are doing even when what intothefiction that retreat theyare sayingmakesno sense at all. Some writers of the the judges are assessing (or 'objectivelyassessing') the intentions parties;74 others simply state the rule and immediatelyproceed to 'illustrations', leavingtheir(no doubtpuzzled)readersto guess the connection that'In to encourage thembut the observation betweenthe two,withnothing thequestionis one of fact'.75 thelast resort, Of course,I am by no means the firstwriterto criticizethis formalistic not doctrine Williston tendency. pointedout in 1914 that the 'legal relations' but the case is law, actuallymeaningless pictureof only gives a confusing mean to take the drasticstep of refusing unless the courtsseriously liability in mind.76 And within our own legal unlessthe partieshad legal consequences with equal system,various writershave made these and other criticisms
I knowofis Fox, Treatiseon writers had done so too; theearliest 69 (1st edn,1867) 9. Some earlier Contracts (1842) 62-3. Simple 70 (Ist edn, 1876)2. would have none of it. Addison(Ist edn, 1847, uithand last 71 (Ist edn, 1879) 14. Otherwriters to the doctrine it; and Chitty edn, 1911) nevermentioned (Ist edn, 1828) avoids all reference until the I8thedn(ed. MacFarlaneand Wrangham, op cit,690. I93o) Io. See P. S. Atiyah, he also citesAustin, Maine and theCode Civil.Pollockbased himself Pothier, 72 Specifically though havemade ofthe For a review ofwhatdifferent of thecivilianSavigny. on thewritings systems see A. G. Chloros33 TulaneL Rev 607 (1959)requirement, is a sufficient of consideration that the commonlaw requirement 73 It has oftenbeen suggested as simpleas thisis is really ofwriting; whether thematter substitute fortheCivilianrequirement ofwriting. requirements quiteextensive) opento doubt, givenourown(at someperiods & Fifoot (ioth edn,1981)98. 74 Anson(25thedn,1979)66-8; Cheshire is Chitty (25thedn,1983) ss 123-33 (ed. Treitel). 75 Treitel(6thedn,1983) 13o; and verysimilar in Bilateral Contracts' 76 In 'Consideration 27 HarvardL Rev 503, 506-07 (1914). He discussesthe matter at greater length in Law of Contract (Ist edn, 1921) s 21. His view is Rev 70, 78-84 [1976]. in myview-by G. MacCormack criticized-ineffectually, Juridical
KEEPING
CONTRACT
IN ITS PLACE
405
whatthejudges at leasthas begunthetaskofdescribing force."But whileAtiyah to go on the law have been reluctant other writers are actually English doing, some It in are is is what demonstration that a they saying meaningless. beyond other have the should odd that so writers rather exposed inadequacies ways many have actually madeofthe whatthecourts of theconcept, and yetfailedto study is it is in terms. while this not odd, But, particularly requirement practical to be to anyparticular unusual.One does nothave to subscribe legalphilosophy to go beyond but a willingness to make thispoint, able to 'trash'legalconcepts; has beentrashed, is apparently use of thefactthattheconcept bymany regarded or all three. as eitherbeyondtheirabilities, 'unlawyerly', deeplyuninteresting, a sketch of the of thispaperI willbe attempting fortheremainder Accordingly, I willbe considering to createlegal relations'. modemlaw of 'intention onlythe be to intention as to legal cannot said have case wheretheparties any realistically I acknowledge thatif theyhave one, the courtswill usually give consequences; to couldbe regarded thatsomeofthecases I refer to it. I also acknowledge effect in mind,without a shadowof as ones wherethe partieshad legal consequences artificiality.78
THE MODERN LAW-(I) PARTIES WHO ARE NOT AT ARMS' LENGTH
I will be usingthe wordto refer A preliminary note on 'consideration': to the in return foran act or promise mustbe an act or promise notion thatthere before withthecases,I must are available. thisnotion remedies To reconcile contractual it not covers extended merely meaning: everything give 'exchange'a somewhat ofgifts', the expression coversin everyday speech(exceptperhapsan 'exchange in terms)but also threefurther a contradiction which is in this connection withtheintention ofencouraging one party makesa promise situations: (I) where the where are made or act from a specified actsdone as part other;"(2) promises of a widerarrangement to whichboth partiescontribute;80 and (3) whereone in respect ofan unliquidated to theother makesa precise claimthe promise party otherhas, and that otheraccepts-I am thinking of maintenance primarily think thisan unnecessarily Some might widedefinition; and indeed agreements.81 somehave arguedthatmostcases whereliability was refused on 'legalrelations'
and the Law' 32 Mod L Rev 377 esp pages 378-80 77 e.g. N. M. Selwyn,'CollectiveAgreements to Contract Introduction (1969); P. S. Atiyah, (3rd edn, 1981) Chap 7 passim,see also material referred to in n 82. v Merritt 78 e.g.Merritt infra, 406. is Carlill 41o; Tannerv Tannerinfra, 409. A commercial parallel 79 e.g.Jonesv Padavatton infra, v CarbolicSmokeBall Co [1893] i QB 256. parallelis New 80 e.g. Simpkinsv Pays infra,407; Parker v Clark infra,407. A commercial & Co [1975] AC 154. Zealand ShippingCo v Saiterthwaite parallelis Re Casey's Patent 8I Petersv IRC infran 93; Gould v Gould infran 92. A commercial
[1892]I Ch Io04
406
STEPHEN
HEDLEY
of absenceofbargain."2 But thistheory is uselessunlessor are examples grounds until its proponents that and more precisecriterion produce some narrower in'legalrelations' cases. with theresults atleastroughly corresponds In domesticcases, the rule is that agreements will be enforced only at the of a partywho has performed one side of thebargain;but thereis no instance be available. In other thatsanctions thecourts' needto proveanyintention words, andrefusing is to prevent one side taking thebenefits concern ofthearrangement at the prospectof bireach of a purely the burdens, but theyare unconcerned The cases wherethegreatest are imposedare liabilities executory arrangement. consideraandonce-for-all theplaintiff has supplied somesubstantial thosewhere is imposed. Thus in in return unlesscontractual tion,and willgetnothing liability v Merritt,83 on thebreakdown oftheir thehusband where Merritt agreed marriage to transfer of the house to the wife in return forher promiseto the freehold forthemortgage he was heldboundbythisproassumeresponsibility payments, mise in an action brought by the wife aftershe had paid offthe mortgage or a travesty ofwhatwas promised, Butifperformance is non-existent completely. v Blackmore84 theestateof a jalopy enforcement is not available. Thus in White for oftheraceinwhich he had methisdeath, racersuedtheorganisers negligence; one defence was an allegedcontract underwhichtheridersurrendered anyright to sue in return forbeingallowedto compete. Buttheir performfatally negligent ancecouldnotconstitute a sufficient to allowthem to enforce. consideration usual inreported cases.The more These once-off transactions rarely appearonly rule The general ofbenefits overa period. is a proposed ofexchanges situation series is thateach individual is viewedin isolation, and enforced onlywhere exchange the In practical is actually consideration and notjust promised. terms, supplied, and enforced from the is severed executed purely executory, partoftheagreement towork in another thatonewilldrive there is an agreement on itsown.Thus,where for for tothecostofthepetrol, an action return for a contribution payment journeys to carry;86 andifon lies for failure butno action willsucceed,"5 already completed usethisdefective thepassenger, hecannot onejourney thedriver negligently injures notto sue."'There tojustify an agreement bythepassenger enforcing performance
82 Unger19 Mod L Rev 96 (1956); Hepple CambLJ 122[1970]. 83 [1970] 1 WLR 1211. cannotbe reconciled 84 [I972] 2 QB 651. Lord DenningMR dissentedon thispoint; my theory v Oates case ofBuckpitt in boththiscase and in the verysimilar withhis reasoning. Curiously, nonfitInjuria succeededon thesame facts.I sharethedoubtsof (infran 87) a plea of Volenti Act 1972, s 148 (3); IGF Karsten32 Mod L Rev 88 (1969) on thispoint.See now Road Traffic Act 1980,s 61. Transport 85 McGoonan v Motor Insurers'Bureau [1969] 2 Lloyd's Rep 34 QBD; Lord Cross in Albertv Bureau [1972] AC 301,34oab. MotorInsurers' 86 Cowardv MotorInsurers' Bureau [1963] QB 259. I with cannotbe reconciled 87 Buckpittv Oates [1968] I All ER 1145,Devon Assizes. My theory J's dictum(I147cd) thatno actionwould have been availableforthe agreed JohnStephenson withoutincident-unless of coursehe was simply amountif thejourneyhad been completed thatno amount had beenagreedat all. saying
KEEPING
CONTRACT
IN ITS PLACE
407
was imposedin respectof the are severalexamplesin the cases whereliability whereliability on the wholeof the agreement executedpartsof a transaction, In Simpkins v Pays,88 theplaintiff, thedefendant wouldhave been unthinkable. enter a to and a third week,splitting newspaper competition party agreed every theapplication form and agreeing and thecostsofapplying thejob ofcompleting the won.Whenthey was held entitled to sharetheprizeifthey to sue did, plaintiff whom the had been for her And the defendant third share. (to prize-money paid) wherea man gave the womanhe was livingwithmoneyfor in R v Cullen,89 but she lost it all at bingo,the Courtof Appealwereprepared to housekeeping a legal obligation and so was liablefortheft."9 assumethatshe had undertaken are in a special position: the wife cannot legally Maintenanceagreements her rightto an orderformaintenance,91 surrender and accordingly forpresent her never execute of the can side Contractual has thus bargain. purposes liability in one where the beenrefused92 husband was the had case, dead, except payments all been made and the wifehad neverappliedto thecourt;it was held thatthe had been made under an enforceable and were therefore contract, payments tax-deductible.93 where thecourts haveconsistently refused Thereis one class ofcases,however, into executedand executory have but to sever the agreement instead parts, the whole.94These are cases whereone partyhas allowedanother to enforced in for some return or and so periodical payment service; occupypremises longas is prepared to go on withthebargain, the occupier the courts either forbid will eviction or (ifmoreappropriate) for Sometimes the reason givecompensation it."9 is someunderlying seemsto be thatthere which thecourt as willenforce bargain, in Parkerv Clark96 a whole.For example, the plaintiff and defendant couples to sharethedefendants' houseand split therunning costs;whenarguments agreed a yearandtheplaintiffs wereheldableto sue fordamages broke outafter left, they that sell on the underlying would theirformer house and the bargain they
88 [1955]
to in Smithand Hogan's CriminalLaw: Cases and 89 Unreported (1974) no 968/C/74;referred
WLR 975-
the whether this alters position. v IRC [I194]2 AllER 620. 93 Peters v Bramwell inconsistent with I ignore itin 94 Bramwell modem [1942]I KB 370seems practice; what follows. is thenormal butis notconsidered eviction iftheclaimant has 95 Refusing remedy, appropriate
thepremises-Parkerv Clark infra, Tannerv Tannerinfra, left already 409. v Errington such caseis Errington and Woods[1952] 1 KB 290. 96 [1960] 1WLR 286.Another
91 See Hymanv Hyman[1929] AC 60l. v Gould CausesAct1973s 34 (1); quaere 92 e.g. Gould [1970] I QB 275. See nowMatrimonial
Materials (2ndedn, 1980) 486. Act 1968, s 5 (3). Therewas no conclusive that'obligation' meant 90 See Theft authority 'legal butthisseems theonly view. A similar reasonable caseis Davidge v Burnett obligation', [19841 LR 297,where thedefendant onpresents Crim her flatmates hadgiven hertopay spent money andtheDivisional thegas bill.The Magistrates Court were to assume that this was prepared ons 5 (3). theft, relying
408
STEPHEN
HEDLEY
defendants wouldleavetheirs totheplaintiffs doesnotseemtobe bywill.Butthere In Hardwick foran underlying v Johnson97 theplaintiff let anynecessity bargain. her son and daughter-in-law occupya house she ownedfor?7 perweek; it was unclear or to payoff whether thiswas rent themortgage. After themarriage broke was heldcontractually to remain, entitled at leastwhile down,thedaughter-in-law shecontinued topay."98 The fallacyto be avoided here consistsof askingthe question'Is therea contract thata courtis almost facedwitha particular ?', butforgetting invariably The perspective claimbasedon an alleged contract. given bytheclaimmadealters Take a variation oftheclassicacademic inthisarea:" Jack conundrum everything. and Jillagreeto go out to dinner and to splitthe bill. By askingthe academic 'Is there a contract?' in therealmoftheabstract. we are immediately If, question we approach thematter a practical we must from knowwhat however, standpoint, claimis beingmade.IfJill is suing to go to dinner at becauseJack has refused Jack are compelling. be takenas cannot all, thearguments Jack against liability Surely an outright to go to dinner-whatifhe is ill,or they commitment cannot giving But imagine restaurant? thatthetwoalready had their dinner, agreeon a suitable for butJack topayhishalf. convenience refuses Jill subsequently paysthebillinfull, The perspective cannotbe changes.It is no longerso obviousthatthecontract man's' man'weareconsulting, then the'reasonable enforced. If it is the'reasonable thatthere contention Jack's maychangein thecourseofthetransaction. opinion was no intention to form a binding to receive littlesympathy. contract is likely Blanket incases that onthefacts before statements there is no 'intention tocontract' therefore be treated itis vitalto notewhether this thecourt should withsuspicion; was being oran executory saidinrelation toanexecuted contract. This is evenmoreso becausethecourtis sometimes intoasking simply trapped 'whether thereis a contract', and whichway thecourtdecidesthisclass ofcase on howtheir aredirected This seemsto seemsto dependsimply minds bycounsel. in theMotorInsurers' be whathappened had to Bureaucases,wherethecourts that oneshould whether there whoagreed consider was a contract between workers In in return to thecostofthepetrol.100 theothers to work fora contribution carry
97 [1978] I WLR 683.
eventhough shehad to remain thedaughter-in-law thecourtwentevenfurther, 98 In fact, allowing had waived payment at the amount. As to one period,the mother-in-law not paid a substantial as ifshehad paid; thedaughter-in-law to be treated time,and all seemedto assumethisentitled in herfavour. onjudgment thedaughter-in-law for therest, paid thearrears in thisarea, is a commonplace of textbooks to go to dinner 99 The exampleof two peopleagreeing the that cannotpossiblygive rise to legal liability; usuallyas a stockexampleof a situation earliest exampleI knowof is Anson(2nd edn,1882) 22. I knowno case whereourlegal system has been asked to decidethe issue,but see (1930) 170 LT 317 fora reference to a Frenchcase to exist. where was found liability apparently held in Albertv MotorInsurers'Bureau [1972] AC 301 that 1oo The House of Lords eventually were 'carriedforhireor reward'and so withinthe MIB whether the passengers determining or not therewas a contract whether did not, after all, requirethemto determine agreement thedriver between and thepassengers.
KEEPING
CONTRACT
IN ITS PLACE
409
was no contract, it is plainthatthecourt the cases whereit was held thatthere thequestion 'Could thedriver itself be compelled to carry theothers in was asking a contract: 'The hazardsofeveryday such to find thefuture life, ?', and so refused ofholidays, thepossibility ofa change theincidence of as temporary indisposition, or incompatibility make it most hours of overtime, shiftor different arising, thatthe one was legally boundto carry thateither contemplated party unlikely of a contract to work.""'But ifthecourtis thinking and theotherto be carried 'a on it is the for the service once to rendered, plea part of the pay simply a shrift he to enter contract would that never meant into short [receive] passenger it renders the The for is that theory question meaningless difficulty my .'02 But thisis thepricethatmustbe paidfora theory was a contract'. there 'whether which works. ofdetailneedto be considered. theeffect in Variouspoints ofvagueness Firstly, It occasionally of an agreement the agreement. is so happensthatthe evidence at all,unless thatthecourt cannot holdthatthere was an agreement unsatisfactory ofagreement is somerelevant to fallbackon.'o3But in cases of there presumption wheretherewas plainly an agreement of some sort,the executedarrangements, withimplied It is difficult willcuretheuncertainty terms. to stateprecisely courts in anygivensituation; thecourtswillimply whichterms all thatcan be said is thattheywillprovide whattheythink is a fairrecompense fortheconsideration In Tannerv Tanner104 the arrangement was thatthedefendant should supplied. come to live in the flatprovidedby the plaintiff-indoing so she provided consideration flat.The relationship by givingup her own Rent-Act-protected brokedown;butthedefendant on theagreement relied as a defence subsequently to the plaintiff's actionforpossessionof his flat.The Courtof Appealheldthe butwerein a quandary as to thelength oftimeshewas enforceable, arrangement entitled to remain there. thishad been left Naturally, quitevagueby theparties themselves. In theendthecourt heldshehadtheright to remain foras longas her wereofschoolage,subject children to anyrelevant in hercircumstances. change The courtin Tannerseemsto have been heavily influenced viewthat by their was undera moralobligation the plaintiff to provide forthedefendant and her MR Lord said so and his fellow children: Denning expressly,105 judges suggested no othergroundto justify the linkbetweenthe duration of the licenceand the educationof the children. But the concept of recompense for consideration in seems Horrocks v which is similar but central; supplied Forray,1'06 superficially thewoman'sside ofthearrangement was thought to involve herin no detriment,
102
Bureau [1967] I QB 259, 271. IoI UpjohnLJper curiamin Cowardv MotorInsurers' Per Lord Cross inAlbert v MotorInsurers' Bureau [1972]AC 301,340oab. v Hoddinott thatthere was sucha 103 e.g. Hoddinott argued [I949] 2 KB 406. DenningLJ'sdissent presumption: 415-16. 104 ['97513 AllER 776. v Kerley 105 [197513 AllER 779h.See also Chandler [1978] I WLR 699, where againthereasoning had distinctly moralovertones. io6 [1976] I AllER 737.
410
STEPHEN
HEDLEY
It is important no contract was found.7"' in to notethat theCourt's difficulties there Tanner were notinholding wasanenforceable butindetermining contract, whatthatcontract on thearrangement, relied and mere was; shehad plainly in what had was she been bar toher no difficulty promised quantifying precisely claim. Theuncertainty didnotdestroy the itmerely the court's made contract, job inspelling outitsterms more difficult. ofthe is solittle ofwhich terms will be there indication reason part why Perhaps It will what term thecourts areimplying. is that rarely sayprecisely they implied it besufficient for them tosaythat whatever the content ofthe term, precise usually And when ofthe court is which wins andwhich loses.108 onemember is clear party itlooks a andtheothers arenot, as ifthat to be precise judgeis taking prepared InJones a woman v Padavatton,'09 different view ofthe facts. job in gaveupher in England in a house for theBar,living NewYorkandstudied provided byher it Their she had the Finals. to until Bar available who mother, passed promised keep that she made the that didnot cover events namely expressly happened, agreement unsuccessful After at theexams, butkept ontrying. several failed, many attempts The Court anorder ofAppeal topass, her mother for possession. attempts sought the Eachmember ofthe court stressed there wasnodefence. held that open-ended ofthe factor thetheoretical Butthis entered oftheagreement."o nature reasoning The daughter winifthearrangement indifferent could various only ways. judges andFenton Atkinson an indefinite to retake. Danckwerts included enforced right an it-such the refused to enforce this was and that LJJ arrangement argued have tobe legally Salmon been meant could notpossibly LJ binding. arrangement the how much matter from other would the the direction: arrangement approached ?He accordingly beenforced the truncated version could have before tobecutdown a few was a legally enforceable but thatafter thatthere found arrangement, itbecame onnotice. exams mother atthe determinable unsuccessful bythe attempts more wasclaiming than with the start ideathat the ofreasoning Both lines daughter her claim. end with entitled her reliance her detrimental to;both denying reasonably them. the that theoretical the Itisonly way along distinguish steps theproposition as in other areasof also illustrates v Padavatton that, Jones inthe aresymbiotic. andinequality gives contract, Vagueness exchange vagueness the butitisfrequently the toimply terms the excuse the court equalizing exchange; the that convinces contract a of the from literal interpretation flowing inequality
consideration-see extractfromher 107 The defendant alleged various mattersas constituting thattherewas no of the courtwas simply defence [1976] I All ER 741ac-but the reasoning ER All she claimed: to the effect (ScarmanLJ). 745hj (Megaw 744gh [1976] agreement LJ); I v Kerley[1978] I WLR 699. io8 e.g.HardwickvJohnson [1978] I WLR 683; Chandler o09[1969] 1WLR 328. LJ). LJ); 334cg(SalmonLJ); 337ac (FentonAtkinson I io [1969] I WLR 332cd(Danckwerts
KEEPING
CONTRACT
IN ITS PLACE
4II
court it could not have been meant literallyand was thus in need of 'clarification' by implied terms.'11 is too trivialto merit Is it possibleto argue that a particular arrangement remedies?It seems not, unless the parties themselves saw the contractual as so utterly trivial thatno seriousexpectations werecreatedon either matter side."'2 The point was not argued in Ferris v Weaven,"3where a husband broke down that she could have the promisedhis wife when theirmarriage house providedshe did not pesterhim any more. After ten years,in which did not pesterhim, she was held to have a contractual time she presumably rightto the house. The 'triviality' point can only succeed if the court is in the the for some reason otherthan that one matter abstract, considering the to has a case is Esso PetroleumCo v sued. Such arrangement party Customsand Excise Commissioners,114 wherethe House of Lords considered the enforceability of a 'gift'offer of medallions with petrol;individually, the sums involvedwere trivial, but in aggregate amounted to a they sufficiently The resulton thispoint over.11s large amountforthe tax to be worth fighting is distinctly ambivalent: a bare majority thetriviality irrelevant."' The thought in can arise a case similar to we see the difficulties Esso; only point very again caused whenthe courtsare forced to answerthe question'Is therea contract?' a reference without to a particular claimunderit."7 A final matteris the applicationof all I have said to the creationof non-contractual interests. Reference to Balfourv Balfourin this area property is spasmodic, but the analysisI supply above can,mutatis be used to mutandis, the of this to as well. Where explain application requirement property rights the right claimed is purely a matterof gift,legal relationswill not be affected"'exceptwherethis is veryplainlyintended. But wherethe rightis based on contract or something such as the contributions in Pettitv analogous,
Area Health Authorityv South Staffordshire i II A commercialexample is Staffordshire Waterworks for this approachwas Co [1979] I WLR 1387. Perhaps the greatesttriumph Wickham Machine Tool Sales v L Schuler AG [1974] AC 235,where a majority oftheHouse of Lords decidedthatan agreement couldnotbe takenliterally whenit provided thatperformance of certaintermswas to be a 'condition of thisagreement'. Whether the House would do the v Securicor samein thewakeofPhotoProduction Transport [1980] AC 827 is opento question. I12 See supra 400-oI. 113[I952]2 AllER 233114 [I976] I WLR i. the medallions were'producedin quantity forgeneralsale'; theHouse i 5 The issue was whether heldthatthey Esso wereliableto pay some?200,000o tax. were,and accordingly purchase was 3:2. Takingintoaccountthejudgements ofthelowercourtsat [1975] i WLR I 16 The majority was 5:4 theother 406 and [1973] I WLR I240, theoverall figure way. I I P. think S. alarmat thethought See thattriviality couldbe 408-9. Atiyah's Accordingly, supra 17 relevantto 'legal relations'39 Mod L Rev 335 (I976) is misplaced;the Esso case is no real indication as to whatthecourts woulddo ifa motorist had suedfor a failure toget a medallion. 118 e.g. Spellmanv Spellman[i96i] I WLR 921; and notetherefusal to imply terms in Heslop v
Burns [I974] IWLR 124I.
412
STEPHEN
HEDLEY
thatthe reliance in proprietary Pettit"9or thedetrimental againwe find estoppel, to that acted on the is the extent has been enforced it by plaintiff, arrangement and thatwhenit has been so actedon thecourtwill cureanyvagueness by the make no In it to of reasonable seems some areas,indeed, terms.120 implication or on someproperty theclaimis treated as based on contract difference whether If my view is accepted,the unresolved doctrine. questionwhether Balfour is termsit forin practical restricted to contract121 can safelyremainunresolved, that makes no difference. Lord DenningMR consistently argued Balfour v 22 of the field domestic to out of should be used contract entirely sweep Balfour these but since for the clear broad relations, equitableprinciples;'23 leaving way relied been an that has the of have effect enforcing agreement principles generally Thereis whether we callthis'equity'or 'contract'. difference upon,it makeslittle into one of and if fusion a not for contract, need, bodyof property equity plainly to stop them between rulesin thisarea,thenat leastfora common terminology issuesturn.124 on which no practical battles senseless theoretical
THE MODERN LAW-(2) PARTIES AT ARMS' LENGTH
the rule is simple:thereis no Wherethe partiesare dealingat arms' length, to show It is opento one party relations. of to create intention legal requirement it will take strong wordsto do this.125 thatlegal liability was excluded, though intended workable is an apparently Wherethere by whichtheparties agreement a clauseappearing to exclude to abide,thecourtwillapproach by legalsanctions be not so much'Whatdoes thisclausemean?'as 'Can thisclausepossibly asking construedas permitting legal sanctions,or are we forced to hold them It is no doubt possible for one partyto escape liability unavailable?'.'26 by
ofhouses,theCourtof Appeal to thepurchase of contributions AC 777. In the context I19 [i979] Burns v Burns [1984] I All ER 244. of agreement: the importance affirmed has recently to Balfour v theirreference Whatevermay be the positionon agreement-in-fact, however, Balfouris, as ever,merelip-service. 120 e.g. Crabbv ArunDistrict Council[1976]Ch 79; EvesvEvesv[1975]I WLR 1338.
121 Raised but not settled in Pettitt v Pettitt [1970] 122 [191912 123
WLR 425, 436d perBagnallJ.

KB 571;supra 391.
AC 777; and see Cowcher v Cowcher [1972] I
[1978] 1WLR 688h. e.g. Hardwickv Johnson in English vivos Matrimonial ofinter H. Lesser,'The Acquisition Property 124 See moregenerally Law: A DoctrinalMeltingPot' 23 U TorontoLJ 148 esp at 162-7 (1973); J. D. Davies, L Rev 578 esp at 582-3 (1979). Land' 8 Sydney 'Informal affecting Arrangements ofthe wording [1925] AC 445. Notethatdespitetheunequivocal 125 e.g. Rose & Frank v Crompton This mayhowever all thewayto theLords on construction. simply clause,thecase was fought ofsucha clause. ofthenovelty be a result v St. 126 e.g. Edwards v Skyways[1964] I WLR 349. And note Michael RichardsProperties Saviour's Parish, Southwark [19751 3 All ER 416, whereGoffJ held the words 'subjectto Therewas an excellent to be, in his particular contract' context, practicalreason meaningless. forthis-the phrasehad onlybeen included by clericalerror-but thiscould not come out in of what would otherwisebe formallegal theory,and hence the need for 'interpretation' words. unambiguous
KEEPING
CONTRACT
IN ITS
PLACE
413
thatthealleged was no promise at all butmerely a statement of 'promise' showing I know of no But these modem cases there clear aside, intent, example.'27 though of'intention to create The attitude taken is no requirement legalrelations'. bythe was summed when he enforced an between the courts Ormrod J up by agreement was intended on them, bothin honour and in agreement by all ... to be binding law. I do not thinkit occurred to any of themthattherewas any difference betweenthesetwo concepts."'28Yet again,thejudge forms his own view of the ofthesituation, realities andpretends thatitbelongs to theparties. I knowofonlythree cases whichcast doubton thisanalysis.129 In all,contract was beinginvoked in unusualcircumstances; and in all theattempted invocation was a failure. But theuse of 'legal relations' to the issue was not theory explain as in domestic I will reviewthecases briefly, contexts. but nearlyso successful the wrongkindof test is being theyreallyshow littlemorethanthat entirely applied. Ford MotorCo v Amalgamated UnionofEngineering and Foundry Workers'30 is a neatexample ofthewayunthinking the of testwill application 'legalrelations' make the courtpaint itselfinto a corner. The issue was whether a collective between theFordmotor andnineteen was enforceable unions company agreement at Ford's instance. It is hardnotto admire theaudaciouswayin whichGeoffrey Lane Jdismissed all theeasywaysout ofthislegalconundrum. Therewas to be no appealto previous for all ofthem had assumed that authority; (notunnaturally) seriouspromises in thebusinessspherewereenforceable, and so from Geoffrey Lane J'spointof viewhad 'ignored' the'requirement' ofintention to createlegal Nor couldhe retreat relations.13' behindthemaskof the'reasonable man'-one need onlyread the lengthof his disclaimer thathe was decidingany political man'testwouldvirtually this commit issue'32to knowthatusingthe'reasonable to sympathy withoneor other ofthemajorpolitical hypothetical figure parties. he reachedwhat is usuallya safe havenforfirst-instance Eventually judges. he said,is a question offact;and as arbiter ofthefacts he determined Intention,
127 See ns 53-4 supra. 128 Snelling v Snelling [ 1972] I All ER 79, 84j. to regard Lens v Devonshire Club as involving 129 I have already explained myreasonsforrefusing
directorsof a company, who were all brothers: '. . . I .
. am satisfiedthat this
oflaw-supra n 9. One situation whichmaygiveriseto suchproblems anyseriousproposition in future is suggested by Casson v University ofAston in Birmingham [1983] I All ER 88, wherethe plaintiff of an offer of a place to read Human soughtdamages forthe withdrawal Communications. Lord Hailsham LC (actingforthe Visitor)held thathe had no jurisdiction, and thattheplaintiff's (ifshehad one at all) was in contract. remedy 130 [1969] 2 All ER 481. Lane Jand Clark33 Mod L Rev 117(1970) missthe 49od. BothGeoffrey 131 [1969] 2 All ER 488df, basic pointthatthere is no requirement of'intention to createlegalrelations' in anyparticular businesscontext until thecourtsintroduce it-and thiswas precisely whatGeoffrey Lane Jwas this misconception doing, whetherhe realized it or not. Naturally, plays havoc with their assessment ofearlier case law.
132 [1969] 2 All ER 487hi.
414
STEPHEN HEDLEY
But this usually that therewas a generalclimateadverseto enforceability.'33 farfrom fails when the facts in are question publicproperty; dependable technique can the the from criticism a on facts' usually immunity receiving 'judgment thecase is thecase has beenvigorously criticized.134 For present purposes expect, itwas inevitable thatthe in thepolitical climate ofthetime, unimportant: perhaps taken the the from matter and decision shouldbecomea political football, away is I the Ford case The is this: that courts merely by statute.'35 point, think, simply that'intention from thefiction an extreme which follow oftheabsurdities example thecourts to is a question offact.It is toomuchto expect to create legalrelations' travesties an but overt such a matter on policybasis; approach political highly reaction as the normaland proper such as theFord case shouldnot be treated in someother context. whether is appropriate whenit is questioned contract In the othertwo cases, the Courtof Appealhad no such excuse.These are are v Parfitt;'37 v Booth'36 andPresident they Conference oftheMethodist Rogers Parfitt I Reverend the second. will discuss for convenience so only verysimilar, thathe He contended after was dismissed proceedings. disciplinary byhis church no was there that Court of held but the had been unfairly dismissed, Appeal in limine. himandhis church, so thathisclaimfailed contract between twobodies between ofa conflict mesmerized The courtseemed bytheprospect law natural that who oflaw,onehuman andonedivine. Anyone imagines religious Court of in the notetheir theories are a relicofpastages should Appeal resurgence in 1983: oftheactof nature thespiritual ... thespiritual oftheminister, nature ofthefunctions of theMethodist standards of handsand thedoctrinal ordination by theimposition init minister ofevery Church andtothe which tothat Church areso fundamental position cameinto ofservice, a contract letalone itimpossible toconclude that make contract, any theminister when Church ordained minister andtheMethodist between thenewly being
133 [1969] 2 AllER 494i.
in the way of accepting the difficulties 134 Selwyn32 Mod L Rev 377 (1969) ably demonstrates from notionof arguing Lane J'sview,and indeedin thevery any'climateofopinion' Geoffrey to put but at least he had thehonesty for enforcement his arguments at all. I find unconvincing; man'. to 'thereasonable forward as his own,and notpretend them they belonged Act 1974 s 18. Relations Act 1971s 334; Trade Unionand Labour Relations 135 See Industrial was a a SalvationArmy the plaintiff, officer, 136 [1937] 2 All ER 751. The questionwas whether Act 1925. The Courtof Appealheld she was within the Workmen's 'workman' Compensation on muchthe same groundsas in Parfitt not,refusing infra.There are severalother liability Ministers cases raisingsimilar (1912) 107 LTR 143, ofMethodist issues--e.g. Re Employment and seek to or other, in some form of legal relations J-but theseassume the existence Joyce or not. ofservice' themas 'contract classify 137 [1983] 3 All ER 747.
KEEPING
CONTRACT
IN ITS PLACE
415
was received into ofthestipend'38 connection. The nature this view. In the full supports theminister setsoutto serve Godas hismaster; I do notthink that itis sense, spiritual inthelegal heis atthepoint to saythat sense ofordination right undertaking bycontract to servethe Church or the Conference as his master the yearsof his throughout
ministry. 139
of St. ThomasAquinaswas no doubtlooking The spirit on withapproval at this delicatesensibility fortheclaimsof divinelaw; as he said a meresevencenturies enactedlaws are in accordwithreasonto theextent thatthey ago, 'All humanly derivefrom thenatural law. And ifa humanlaw is at variance in anyparticular withthenatural butrather a corruption oflaw.''40 law,it is no longer legal, A concluding the Reverend Parfitt his lost he was judged case because thought: All the members of the tribunals below decided in his all the favour; lay bylawyers. the same were It a takes lawyers test) (applying againsthim.'41 lawyer's training to convince is not merely a statement ofcertain anyonethatthelaw of contract results thatsometimes follow from humanconduct, buta mystical practical body of semi-divine lore.For thosewithout theanswer suchtraining, to theMethodist is obvious: 'The circumstances Conference's of the appointment of a argument the conditions attachedto the appointment and the degreeof control minister, exercisedby the Churchlead the majority of us to the conclusionthat a not incompatible withsuch a legalrelationship.""42 It is notenoughto pointout that contract is not a branch of for no believes simply theology, lawyer consciously thatit is. It is precisely becausethenotion is buriedso deep in thelegalpsyche thatit is so hardto weedout.
contractual arrangementexisted; . . . the spiritualnature of a minister'swork is
forservices but simply rendered as the I38 Viz thata Minister's stipendwas seen not as payment meansto support himself whilehe did God's work:see [1983] 3 All ER 75xfh. Seen as a legal this is similar to Unger'sclaim(see n 82 supra)thatspousesdo not 'bargain'.Both argument, derivetheir as it seemsto me,from thecommercial connotations oftheword force, arguments to the contractual 'bargain'-connotationswhichare irrelevant concept.A bargaindoes not cease to be a bargainsimply becausetheparties wouldfind thislabelodd or evenoffensive. 139 [1983] 3 AllER 752ab perDillonLJ; and perMay LJ at 754h-755d. but the pointholds none the less. The quotationis 140 Of course,Aquinas was not a Methodist, from SummaTheologica, q 95 (trans.J.G. Dawson). Tribunalsand the Employment sit with a legally 141 Both Industrial Appeal Tribunalgenerally with knowledge of Industrial Relations.Reverend qualifiedchairmanand two lay members Parfitt won by a bare majority at bothlevels; in each case it was thechairman who dissented: see [ 198313 AllER 748ef, in allowing theappeal. 75oa. The CourtofAppealwereunanimous thejudgement of the Employment 142 Waterhouse J(dissenting) delivering AppealTribunal(The Times,18 November 1982, EAT 143/82).

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Keeping Contract in Its Place--Balfour v Balfour and the Enforceability of Informal Agreements Author(s): Stephen Hedley Source: Oxford

(ioth edn,1981)97. 33 Law ofContract

32 Macaulayloc cit,200; Beale and Dugdaleloc cit,59.

IN ITS PLACE KEEPING CONTRACT

402 THE REDEFINITION TWENTIETH

HEDLEY LAW IN THE

OF THE ROLE OF CONTRACT

to in Smithand Hogan's CriminalLaw: Cases and 89 Unreported (1974) no 968/C/74;referred

WLR 425, 436d perBagnallJ.

AC 777; and see Cowcher v Cowcher [1972] I

directorsof a company, who were all brothers: '. . . I .

133 [1969] 2 AllER 494i.

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