January 23, 2022

Case Brief: Balfour v Balfour



YEAR: 1919

NAME OF THE COURT: Court of Appeal (Civil Division)

NAME OF THE JUDGES: Warrington LJ, Duke LJ, Atkin LJ


In Balfour v Balfour , the plaintiff (Mrs.Balfour) and defendant (Mr. Balfour) were a married couple who resided in Ceylon, where the husband worked for the government. In 1915 during Mr Balfour’s work leave, the couple went to England, but in 1916, Mr Balfour had to return to Ceylon due to the recommencement of his work.

However, Mrs Balfour (plaintiff) was advised to stay back since she was diagnosed with rheumatic arthritis. Before the defendant sailed back to Ceylon the couple engaged in a verbal agreement wherein Mr Balfour claimed that he would pay Mrs Balfour £30 a month for her maintenance till she returns back. As time passed, differences arose between the couple after which Mr Balfour stated that they should stay apart. Gradually, he stopped making the payments. Therefore, the wife (plaintiff) sued the husband (the defendant) for not abiding to the verbal agreement that they had agreed upon.


Whether the verbal agreement between the plaintiff (Mrs. Balfour) and the defendant (Mr. Balfour) amounted to a contract?


1. According to the English contract law, a contract is an agreement giving rise to obligations which are enforced or recognised by law.

In common law there are 3 basic essentials to the creation of a contract;

i) agreement ii) contractual intention iii) consideration

2. The doctrine to create legal intentions states that in order for a contract to exist, an essential element is that both the parties involved must have the intention to enter into a legally binding contract, and be ready to face legal consequences in case of non-performance by either one of them.

3. In common law, Consideration is “something of value” which is given for a promise and is required in order to make the promise enforceable as a contract. This is traditionally either some detriment to the promisee and/or some benefit to the promisor


The agreement was merely a domestic arrangement between the couple until the husband returned back to England. There was no agreement made on their separation. Hence it was not contractually binding. Also, there was no consideration from the wife’s end. Hence, there was no contractual obligation from the appellant’s end.


The respondents argued that a contract might arise between a husband and wife, in a similar manner as they would with any other person, therefore the wife was entitled to continue to receive the payments as per the verbal agreement that the couple engaged before Mr. Balfour left for Ceylon.


Warrington LJ stated his opinion by mentioning that this was a friendly agreement. He stated that it can be determined by either expression or implication. There was no such contract that was made in express terms since the wife did not bargain for the amount of money that was provided to her. Due to which it is assumed that she was content with the £30. Whereas, the husband implied that he would pay the money until he was in the position to do so. Hence he concluded that this a domestic arrangement which is extremely trivial and cannot be taken to court. Moreover, the husband had no legal intention to enter into a legally binding contract since he was willing to pay the sum only until he was in the position to.

Duke LJ further stated a few crucial points. Firstly, the basis of their communication was their relationship, which cannot be put into a suit. Secondly, this agreement took place while they were living in amity and not separation. Lastly, there was no consideration moving from the wife to the husband, nor was there a promise made by the husband in the first place. Therefore, a contract was never formed.

Lastly, Atkin LJ stated that such agreements between the parties do not result in contracts within the meaning of that term in the law. The most common forms of agreements which do not constitute a contract appear to be that of a husband and wife. The consideration that really obtains for them is that of love and affection, and therefore a non-performance by either one of the two must not lead to legal consequences.


Balfour v Balfour is one of the leading cases in English law since it was then decided that agreements between husband-wife are not considered as contracts since it is presumed that the two parties do not have a legal intent to create legal relations.

It is a land mark case, since it gave birth to the “doctrine to create legal intentions”.

This doctrine has been used later in many cases as a precedent like in the case of Spellman v. Spellman.


The court held that there was no contract. It was merely a domestic arrangement between the husband and wife since the two parties did not intend to create legal relations

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Author Details: Niti Khandelwal and Shlok Shetty (Jindal Global law School)

The views of the author are personal only. (if any)

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