Combe v Combe [1952] EWCA Civ 7 (04 April 1952)

An estranged husband promised to pay his wife an annual allowance. The wife did not apply for court-ordered maintenance in reliance on this. The husband failed to pay. The court held promissory estoppel could not create a cause of action.

Facts

Following their separation and during divorce proceedings, a husband’s solicitor wrote to his wife’s solicitor promising that the husband would pay the wife an annual allowance of £100, free of tax. The wife had a higher income than the husband. In reliance on this promise, the wife did not apply to the Divorce Court for a maintenance order, which she would have been entitled to do. The husband never made any of the promised payments. Several years later, the wife brought an action to recover arrears of payment.

Issues

The primary legal issue was whether the husband’s promise was legally enforceable despite the absence of any consideration from the wife. The wife argued that her forbearance from applying for a maintenance order constituted valid consideration. Alternatively, she argued that the husband should be prevented from going back on his promise under the equitable doctrine of promissory estoppel, as articulated in the Central London Property Trust Ltd v High Trees House Ltd case.

Judgment

The Court of Appeal, overturning the trial judge’s decision, unanimously allowed the husband’s appeal and held that the promise was unenforceable.

Denning LJ’s Reasoning

Denning LJ, who had been instrumental in developing the modern doctrine of promissory estoppel in the High Trees case, provided the leading judgment. He clarified the doctrine’s scope, stating that it does not create new causes of action where none existed before. It is a defensive principle, not a tool to initiate a claim. He famously articulated this limitation with the metaphor that estoppel is a ‘shield’ and not a ‘sword’.

“Much as I am inclined to favour the principle of the High Trees case, it is important that it should not be stretched too far, lest it should be endangered. It does not create new causes of action where none existed before. It only prevents a party from insisting upon his strict legal rights, when it would be inequitable for him to do so, having regard to the dealings which have taken place between the parties.”

He further explained that the doctrine could not replace the fundamental requirement of consideration in contract formation:

“Seeing that the principle never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too firmly fixed to be overthrown by a side-wind.”

Denning LJ determined that there was no pre-existing contract that was being modified. The wife’s forbearance was not consideration because it was not requested by the husband; she simply chose not to apply for maintenance. Therefore, without consideration, no contract was formed, and promissory estoppel could not be used to create one.

Birkett LJ and Asquith LJ

Birkett LJ and Asquith LJ concurred. Birkett LJ emphasised that the wife’s forbearance was her own decision and not made at the husband’s request. Asquith LJ agreed, noting that an act of forbearance only constitutes consideration if it is performed at the promisor’s express or implied request, which was absent here. He reinforced the idea that estoppel could not be the basis for a cause of action.

Implications

Combe v Combe is a landmark case that significantly clarified and constrained the scope of promissory estoppel. It established definitively that the doctrine cannot be used to create a new cause of action where one does not already exist (i.e., it cannot be used as a ‘sword’). Its function is defensive, used to prevent a party from enforcing their strict legal rights when they have promised not to and it would be inequitable to allow them to do so (i.e., it is a ‘shield’). The decision reaffirmed the centrality of the doctrine of consideration as a necessary element for the formation of an enforceable contract in English law, preventing promissory estoppel from becoming a wholesale substitute for it.

Verdict: Appeal allowed. Judgment for the defendant (the husband).

Source: Combe v Combe [1952] EWCA Civ 7 (04 April 1952)