Ward v Byham [1956] EWCA Civ 1 (16 January 1956)

A father promised to pay £1 weekly for his illegitimate child's maintenance if the mother proved the child would be well looked after and happy. The Court of Appeal held there was sufficient consideration for this promise, even though the mother had a pre-existing legal duty to maintain the child.

Facts

The father and mother lived together unmarried from 1949 until May 1954, during which time a daughter, Carol, was born in October 1950. In May 1954, the father turned the mother out of the home and placed the child with a neighbour, paying £1 per week for her care. The mother found work as a housekeeper and wished to have the child live with her. The father wrote a letter dated 27th July 1954 stating:

“Mildred, I am prepared to let you have Carol and pay you up to £1 per week allowance for her providing you can prove that she will be well looked after and happy and also that she is allowed to decide for herself whether or not she wishes to come and live with you. She is well and happy and looking much stronger than ever before. If you decide what to do let me know as soon as possible.”

The mother took the child and cared for her. The father paid £1 weekly until the mother married in February 1955, after which he ceased payments. The mother brought an action to recover the weekly payments.

Issues

The central issue was whether there was sufficient consideration for the father’s promise to pay £1 per week, given that the mother was already under a statutory duty to maintain her illegitimate child under Section 42 of the National Assistance Act 1948.

Judgment

Lord Justice Denning

Lord Justice Denning held that even accepting the mother was only doing what she was legally bound to do, there was sufficient consideration to support the promise. He expressed his view that a promise to perform an existing duty, or the performance of it, should be regarded as good consideration because it confers a benefit on the person to whom it is given. He characterised the father’s promise as a unilateral contract – a promise in return for an act – and once the mother embarked on looking after the child, there was a binding contract.

Lord Justice Morris

Lord Justice Morris agreed, finding consideration in the specific terms of the father’s letter. The father required the mother to prove the child would be well looked after and happy, and that the child would be allowed to decide whether to live with her mother. These conditions went beyond the mother’s bare statutory duty and provided ample consideration for the promise.

Lord Justice Parker

Lord Justice Parker concurred, stating that the letter clearly expressed good consideration for the bargain.

Implications

This case is significant for the law of consideration in contract. It demonstrates two approaches to finding consideration where a party performs a pre-existing duty: (1) Lord Justice Denning’s broader view that performance of an existing duty can itself be good consideration where it confers a practical benefit; and (2) the majority approach finding that the mother’s obligations under the agreement exceeded her statutory duty, as she undertook to keep the child happy and allow her to choose. The case remains an important authority on the sufficiency of consideration in family maintenance agreements.

Verdict: Appeal dismissed with costs. The father was bound by his promise to pay £1 per week for the child’s maintenance, as there was sufficient consideration for the agreement.

Source: Ward v Byham [1956] EWCA Civ 1 (16 January 1956)