Combe v Combe
Promissory estoppel is a shield, not a sword: it cannot create a new cause of action.
Facts
During divorce proceedings, after the decree nisi, Mr Combe's solicitors wrote that he had agreed to pay his wife £100 a year, free of tax, as maintenance. The decree was made absolute. Mr Combe never paid anything. Mrs Combe, who had a larger income than her husband, did not apply to the court for maintenance. Seven years later she sued him for the arrears, arguing that she had refrained from applying for maintenance in reliance on his promise.
Legal principle
The Court of Appeal held that Mrs Combe could not enforce the promise. She had given no consideration, because her husband had not asked her to refrain from applying for maintenance, and she could not have contracted out of her right to apply to the court in any event. Promissory estoppel could not help her, because the principle in High Trees does not create new causes of action where none existed before. Birkett LJ said it was to be used as a shield and not as a sword. Denning LJ emphasised that the doctrine of consideration remained a cardinal requirement for the formation of contracts and was too firmly fixed to be overthrown by a side wind.
Related cases on consideration and promissory estoppel
- Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130
- Chappell & Co Ltd v Nestlé Co Ltd [1960] AC 87
- Collier v P & MJ Wright (Holdings) Ltd [2007] EWCA Civ 1329, [2008] 1 WLR 643
- Currie v Misa (1875) LR 10 Ex 153
- D & C Builders Ltd v Rees [1966] 2 QB 617
- Foakes v Beer (1884) 9 App Cas 605
- Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270
- Hartley v Ponsonby (1857) 7 E & B 872
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
