Combe v Combe [1951] 2 KB 215

A husband promised his wife annual maintenance but never paid. After divorce, she sued to enforce the promise, relying on promissory estoppel. The Court of Appeal held estoppel is a shield, not a sword, and cannot create a cause of action.

Facts

Mr and Mrs Combe were a married couple. Mr Combe promised Mrs Combe that he would pay her an annual maintenance sum. Their marriage subsequently broke down and they were divorced. Mr Combe failed to pay any of the promised maintenance. Mrs Combe delayed taking legal action, and it was not until seven years after the divorce that she brought proceedings against her former husband to enforce the promise.

Critically, there was no consideration provided in exchange for the promise, and therefore no valid contract had been formed. Mrs Combe instead sought to rely on the doctrine of promissory estoppel, arguing that she had acted upon the promise to her own detriment. At first instance, the court accepted her argument and enforced the promise on the basis of promissory estoppel. Mr Combe appealed.

Issues

The central issue before the Court of Appeal was whether promissory estoppel, as reintroduced by Denning J in Central London Property Trust Ltd v High Trees House Ltd [1947], could be used as a cause of action to enforce a gratuitous promise where no consideration existed, or whether it operated only as a defence.

A secondary issue was whether the wife’s forbearance from applying to the court for maintenance for seven years amounted to consideration for the husband’s promise.

Arguments

Mrs Combe argued that although there was no consideration, her reliance on the promise (in particular, her forbearance from seeking maintenance through the courts for seven years) meant that promissory estoppel should operate to enforce the promise.

Mr Combe argued that in the absence of consideration there was no enforceable contract, and that promissory estoppel could not be used to create a cause of action where none otherwise existed.

Judgment

Denning LJ, giving the leading judgment, reversed the lower court’s decision and found in favour of Mr Combe. He took the opportunity to clarify and confine the principle he had earlier articulated in High Trees.

Denning LJ explained the estoppel principle in the following terms: where one party has, by words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the promisor cannot afterwards be allowed to revert to the previous legal relations as if no such promise had been made. However, he emphasised that estoppel could only be used as a “shield” and not a “sword”.

Denning LJ drew a clear distinction with High Trees. In that case, there was an underlying cause of action outside the promise. Here, by contrast, Mrs Combe was attempting to use promissory estoppel itself to create the cause of action, in circumstances where there was no consideration for the husband’s promise to pay maintenance.

He warned that the High Trees principle must not be stretched so as to abolish the doctrine of consideration, stating that

The doctrine of consideration is too firmly fixed to be overthrown by a side-wind….it still remains a cardinal necessity of the formation of a contract

.

On the question of whether the wife’s forbearance for seven years could constitute consideration, Denning LJ held that although Mrs Combe had in fact refrained from applying to the court, this forbearance had not been requested by the husband, expressly or impliedly. In the absence of any such request, there could be no consideration for his promise. He further observed that even had the wife promised not to apply to the court for maintenance, this would not have amounted to good consideration, because a party cannot waive the statutory right to apply for maintenance.

Implications

The decision establishes the important limitation that promissory estoppel operates only as a defence and not as an independent cause of action. It cannot be used by a claimant to sue upon a gratuitous promise where no consideration has been provided.

The judgment preserves the doctrine of consideration as a cardinal requirement for the formation of a contract, and ensures that promissory estoppel — although a valuable equitable doctrine — does not eclipse or undermine that requirement. The case therefore confines High Trees to its proper scope: promissory estoppel prevents a promisor from going back on a promise in circumstances where an existing legal relationship is being modified, but it does not by itself generate new enforceable obligations.

The case is of foundational importance in English contract law. For practitioners, it clarifies that a party seeking to enforce a promise must still identify consideration or another established basis for enforceability; reliance alone is not enough. For claimants in a position analogous to Mrs Combe, the practical significance is that gratuitous promises, however seriously intended and however much acted upon, cannot be sued upon simply because they have been relied on. The decision has since been repeatedly cited as authority for the shield-not-sword limitation on promissory estoppel in English law.

Verdict: Appeal allowed. The Court of Appeal reversed the decision of the lower court and found in favour of Mr Combe, holding that promissory estoppel could not be used to create a cause of action in the absence of consideration.

Source: Combe v Combe [1951] 2 KB 215