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

An unmarried father promised to pay the mother £1 per week to care for their child, provided she ensured the child was 'well looked after and happy'. The court held this promise was enforceable as it exceeded her existing statutory duty, constituting good consideration.

Facts

The claimant (the mother) and the defendant (the father) were an unmarried couple who had a child together. After they separated, the father paid for the child to live with a neighbour. The mother subsequently requested to have the child live with her. The father agreed and wrote to her, stating: ‘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.’ The mother took the child, who was happy to be with her. The father made payments but stopped after the mother remarried. The mother brought an action to enforce the weekly payment, which the County Court judge upheld. The father appealed to the Court of Appeal.

Issues

The central legal issue before the Court of Appeal was whether the mother had provided any valid consideration for the father’s promise to pay her £1 per week. The father’s counsel argued that since the mother was already under a statutory duty to maintain her child (under the National Assistance Act, 1948), her promise to look after the child was simply a promise to perform an existing legal duty, which does not constitute good consideration in law.

Judgment

The Court of Appeal unanimously dismissed the father’s appeal, holding that there was sufficient consideration for his promise to be enforceable. However, the judges provided slightly different reasons for their conclusion.

Lord Denning LJ

Lord Denning took a broad view of consideration. He questioned the established rule that performance of an existing duty is not good consideration, suggesting it was outdated.

I have always thought that a promise to perform an existing duty, or the performance of it, should be regarded as good consideration, because it is a benefit to the person to whom it is given.

Nevertheless, he also found that the mother had in fact gone beyond her existing statutory duty. The father’s letter stipulated not just that the child should be maintained, but that the mother must prove she would be ‘well looked after and happy’. This promise, particularly to ensure the child was ‘happy’, was an additional obligation beyond the bare statutory duty of maintenance, and thus constituted valid consideration. Furthermore, her compliance with the condition that the child be ‘allowed to decide for herself’ was also part of the consideration furnished.

Morris LJ

Morris LJ reached the same conclusion but on a narrower basis. He focused specifically on the terms of the father’s letter and found that the mother’s obligations under the agreement were more extensive than her statutory duty.

…when the mother, in response to the father’s offer, embarked upon the task of looking after the child and when she had the child with her and was looking after the child, she was doing something which she was not required to do by law. She was doing something which was a direct benefit to the father.

He reasoned that the father’s letter was an offer which the mother accepted by her conduct. The promise to prove the child was ‘well looked after and happy’ was a specific benefit to the father, ensuring his child’s welfare in a manner he desired, which was sufficient to be good consideration for his promise to pay.

Parker LJ

Parker LJ concurred with Morris LJ, finding it unnecessary to opine on Lord Denning’s broader proposition regarding existing duties. He construed the father’s letter as a unilateral offer, which the mother accepted by performing the conditions set out in it. He agreed that the mother’s promise to ensure the child was ‘well looked after and happy’ was an obligation that went beyond her statutory duty, and therefore she had provided consideration.

Implications

The case is a significant authority in the law of contract on the doctrine of consideration. While the majority (Morris and Parker LJJ) decided on the narrow ground that the mother had exceeded her legal duty, Lord Denning’s judgment was particularly notable for suggesting that a ‘practical benefit’ derived from the performance of an existing duty could constitute good consideration. This principle was later developed and affirmed in the landmark case of Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1. The decision demonstrates the courts’ willingness to find consideration in domestic agreements to give effect to the parties’ intentions and achieve a just outcome, particularly where one party has clearly benefited from a promise made and acted upon.

Verdict: The father’s appeal was dismissed; the judgment in favour of the mother for the promised payments was upheld.

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