Case Note

Balfour v Balfour [1919] 2 KB 571

Material Facts
Husband made agreement with wife to pay her allowance whilst they were apart.
Not officially a separation agreement. Her claim was that in consideration she
agreed not to use his credit for maintenance.

Holding/Decision
The decision was held in favour of the appellant (the husband.) There was no
contract, only a domestic agreement.

Ratio
There was no contract because there was no intention to create legal relations
(objective intention inferred from the facts). The relevant facts were the nature of
the relationship in which the agreement was made, and through analysis of the
terms which all judges commented they thought doubtful either party had
intention to be bound by pending changes in circumstances. Policy concerns
about the correct place of the court were raised as a justification for why many
agreements are not of a contractual nature. While two of the judges cited lack of
consideration for concluding that there was no contract, with some lack of clarity
around how important this was for the final determination as compared to
intent on its own. Aktin argued explicitely that even when there is consideration
there can be a lack of intent and that therefore the relevant reason for his
decision was that, on the evidence (particularly of the terms), there was a lack of
intention to be bound.

Important Obiter
That spouses could enter into contracts.

Legal Relevance:
Key authority for establishing that where there is offer, acceptance, and even
consideration, this does not mean necessarily that there is a contract. That there
is no contract without objective intention and that domestic agreements may
lack such intention.

Notes
Warrington:

Legal question contract or merely a domestic agreement? 574

Important obiter: I do not for a moment say that it is not possible for such
a contract as is alleged in the present case to be made between husband
and wife. The question is whether such a contract is made. 574
Issue of consideration: there was no bargain on the part of the wife at all.
574
Intention: the question of intention is addressed in relation to what they
would have been bargaining for and if that really made sense. (575-574)
Also: The matter really reduces itself to an absurdity when one considers
it, because if we were to hold that with regard to all the more or less trivial
concerns of life . . . All I can say is that there is no contract here. These
two people never intended to make a bargain which could be enforced.
575
Final two paragraphs seem to say that consideration isnt really relevant,
because there was no intention.

Duke:

More focused on question of consideration, but focused on the basis of

the whole communication as being between husband and wife. (575-576)
At time of agreement were not separated.
No consideration The giving up of that which was not a right was no
consideration. 577
Lead to unlimited litigation 577
No consideration in final analysis, nor promise by the husband to the wife
which was sufficient to sustain this action founded on contract. (578)

Atkin:
. . . there are agreements between parties which do not result in contracts
within the meaning of that term in our law. The ordinary example is where two
parties agree to take a walk together, or where there is an offer and acceptance
of hospitality . . . 578
To my mind those agreements, or many of them, do not amount to contracts at
all, and they do not result in contracts even though there may be what as
between other parties would constitute consideration for the agreement. 578

 . . . they are not contracts, and they are not contracts because the
parties did not intend that they should be attended by legal
consequences. (579)

On page 580, also says terms wouldnt really make sense. This appears to
be used in an argument regarding a lack of intention.