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Balfour v Balfour [1919] 2 KB 571

By Aleksander Boyd

Balfour v Balfour [1919] 2 KB viewed through the lens of a feminist critique of contract can only be seen as a regrettable decision that should not be followed now. Discuss.

In order to establish the sheer absurdity of the decision in Balfour v Balfour, one must start by analysing the legal foundation in which the plaintiff and the defendant were standing at the time of the agreement i.e. marriage. For it is by giving verbal consent and signatures that two persons enter into marriage; subsequently the explicit consent turns the act into a contract in its own right or else why bother in signing, in the presence of witnesses and Ministers of the Church or Registrars, a certificate solemnising it?

It is of paramount interest also to define the doctrine of consideration. As cited in Currie v Misa [1]:

A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to one party, or some fore bearance, detriment, loss or responsibility given, suffered or undertaken by the other.

Professor Patrick Atiyah proposed a different, more hands-on sort of approach that sums up the conduct of the courts [2]:

The truth is that the courts have never set out to create a doctrine of consideration. They have been concerned with the much more practical problem of deciding in the course of litigation whether a particular promise in a particular case should be enforced… When the courts found sufficient reason for enforcing a promise they enforced it; and when they found that for one reason or another it was undesirable to enforce a promise, they did not enforce it. It seems highly probable that when the courts first used the word “consideration” they meant no more than there was a “reason” for the enforcement of a promise. If the consideration was “good”, this meant that the court found sufficient reason for enforcing the promise.

Professor Sir Guenter Treitel in turn “adheres to the benefit/detriment analysis” disputing Atiyah’s viewpoint and argues that there exists a “complex and multifarious body of rules -known as the doctrine of consideration- and rejects the argument that consideration means a reason for the enforcement of a promise. He maintains that such proposition is a “negation of the existence of any applicable rules of law” because it does not tell us the circumstances in which the courts will find the existence of such a “good reason”. [3]

The different perspectives as regards consideration bring us to the necessity of establishing the nature of the consideration given by the plaintiff in return for the promise. The following arguments [4] denote that the judges underestimated the value of the plaintiff’s consideration i.e. her right to pledge his credit and her promise to call not upon the defendant for further maintenance.

Consideration must be sufficient but it needs not to be adequate and it must be something which the law regards as being of value. Natural love and affection does not constitute value for this purposes.

Consideration must move from the promisee.

Where the act of the promisee can be shown to be at the request, express or implied, of the promisor then the act of the promisee will constitute good consideration.

In my view the ceding of a right contemplated in the marital entity must make for enough consideration. The detriment which the plaintiff undergo by not pledging the credit of the defendant was neither properly assessed; no straight thinking person can rightly affirm that the voluntary passing of certain necessities to keep a promise does not constitute valid consideration. Natural love and affection have nothing to do with it the plaintiff in keeping her promise did not call upon the defendant for further maintenance.

The plaintiff was allegedly suing for lack of performance on the defendants account in paying a sum of money that he had promised to give as a monthly allowance whilst he was overseas, where the time and the end use of the allowance are of significance, 1916 and maintenance respectively. It was argued that since what she gave as consideration “her right to pledge his credit” [5] did not sufficiently meet the criteria for consideration at the time; her legal actions could not succeed.

The defendant “in consultation with her assessed her needs and said he would send 30l. per month for her maintenance”. [6] Webster’s dictionary defines consultation as the act of consulting; the literal meaning of the verb being “to seek the opinion or advice of another; to take counsel; to deliberate together; to confer”. Undoubtedly there was a conversation on the subject and it is rather obvious that her opinion was taken into account, resulting in the parole agreement, hence there occurred some bargaining. To have dismissed the plaintiff’s consideration -or lack of bargain- on the grounds of her failure to fulfil the doctrine of consideration leads to the belief that the judges applied a subjective test to the case.

Warrington L.J. commented:

The husband expressed his intention to make this payment, and he promised to make it, and was bound in honour to continue it so long as he was in a position to do so. [7]

The inclusion of “…so long as he was in a position to do so” merits scrutiny for the defendant did not agree to make the payments in those terms but rather to honour his promise as long as the plaintiff refrained herself from calling upon him for further maintenance, which was indeed the case.

Furthermore, later on in his judgement Warrington L.J. mentioned “…the obligation of the husband to maintain her”. [8] So there exists a contractual obligation born from the marriage entity as such; this begs for the question, was the obligation met? Since the defendant failed to perform accordingly to what was agreed, did he provide any other means of maintenance to the plaintiff during the time of their separation? The legality of the contract could not be established in the opinion of Warrington L.J., how could it be rationally alleged then that the husband had indeed and obligation to maintain the wife?

That she did not set out to form a legally binding contract –as mentioned by Warrington L.J. - right there and then it is obvious for it was not in her plans having to separate from her husband. It was rather unforeseen circumstances or force majeure due to her ailments. The judge went on utilizing words such as “absurdity, trivial” which quite frankly have a tint of utter disrespect towards the frail situation in which the plaintiff found herself in at the time.

It is quite difficult to imagine a woman suffering from rheumatic arthritis in 1916, tantamount to abnormal circumstances, having to provide economic means for her keep. Indeed one of the most vernacular arguments of men throughout history is that of the sustentation of the family. In some cultures is even motive of pride. At the moment of contracting marriage –note the use of contracting- the law representatives or Ministers of God make sufficiently clear that both parties accept to support the other in dire times. Although the nature and characteristics of the support are not explicitly stated it is sound to affirm that monetary sustenance falls in the field of support. Such was the case of the plaintiff. Taking into account her physical state, it constituted the duty of the defendant –from a marital perspective- to provide maintenance for her, even more so in light of their cordial and amicable situation at the time of his depart to Ceylon.

Another shocking argument can be read in the ruling of Duke L.J. where it is said:

It is required that the obligations arising out of that relationship shall be displaced before either of the parties can found a contract upon such promises. [9]

Again one must examine the fundamental question of whether or not the defendant complied with his standing obligations. The aforementioned judges decided that no contract was made between the parties; hence his obligations towards her were very much live and kicking. No contract resulted and therefore no anterior obligations were displaced. To have recourse to that line of reasoning constitutes -in judge Duke’s own words- a solecism. Continues the judge with his nonsensical manner of thinking and states:

What is said on the part of the wife in this case is that her arrangement with her husband that she should assent to that which was in his discretion to do or not to do was the consideration moving from her to her husband. The giving up of that which was not a right was not a consideration. [10]

In any event, when one of the parties of a happy marriage suffers the first and logic option is to recourse to the other party in search for consolation and help. Allegedly the plaintiff and the defendant had such amicable and loving relationship yet the judges want us to believe that there was not consideration moving from the plaintiff to the defendant; “darling I am leaving for Ceylon, do not know for certain how long is it going to take for my return, since you are sick I will send 30l. per month, however should I fail to perform do not pledge my credit and do not call upon me for further assistance for it is in my discretion to do so”. Is that the conduct that should be expected from a loving husband after 16 years of marriage? What was this lady suppose to do then? Seek employment –of the manual type considering the time- whilst suffering from a paralysing disease? Steal? Were her human rights respected? It is ludicrous to argue that there was not consideration and inhumane to compare this scenario with a “walk in the park or an offer and acceptance of hospitality” Atkin’s L.J. dictum.

If one is to analyze the case from a benefit/detriment perspective another series of points arise. The benefit of the defendant is easily determinable i.e. total disregard of his duties and obligations towards his wife whereas the detriment of the plaintiff is one who encroaches on her very own human rights. In that sense one must mention some articles of the Universal Declaration of Human Rights which might shed some light on the issue [11]:

Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

From a feminist perspective one could continue citing more and more rights that were impinged. The test applied by the judges was clearly subjective and vitiated with personal views as to what constitutes the nature of a husband and wife relationship and the roles and duties of each party. The decision evidence also the “impartiality” of men when it comes to analyse situations in which all sort of prejudices towards women run freely disguised in legality. It would have been very interesting to see how they would have reacted had the daughter of any of them been involved in such an awkward and sad situation. In my view the decision in Balfour v Balfour is undoubtedly incoherent and biased, most certainly not qualifying for precedent. The finality of applying law in the administration of justice is not only to follow blindly the rules which in certain cases are hard to find or simply non-existent, in addition judges have to do their utmost to interpret the will of said laws without loosing objectivity and fairness. No element relevant to a case can be left out when the time for deliberation comes and quite frankly it is almost impossible to believe that the personal condition of the plaintiff was duly appraised by the judges.

[1] Currie v Misa (1875) LR 10 Exch 153, cited in Law of Contract by Cheshire, Fifoot & Furmston’s, 13th Ed. Butterworths p. 75

[2] As cited in Contract Law by Ewan Mckendrick, 5th Ed. Palgrave Law Masters p. 83

[3] As cited in Contract Law by Ewan Mckendrick, 5th Ed. Palgrave Law Masters p. 83

[4] As cited in Contract Law by Ewan Mckendrick, 5th Ed. Palgrave Law Masters p. 127

[5] Warrington L.J. referred to Lush on Husband and Wife, 3rd ed., p. 386

[6] (1919) 2 K.B. 571 p.1

[7] (1919) 2 K.B. 571 p.3

[8] (1919) 2 K.B. 571 p.3

[9] (1919) 2 K.B. 571 p.4

[10] (1919) 2 K.B. 571 p.5

[11] Universal Declaration of Human Rights


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