DHARMASHASTRA NATIONAL LAW UNIVERSITY

Academic Session (2021-22)

Subject: - Contract-I

Topic: - “Balfour v. Balfour”

Submitted to: - Submitted by: -

Mr. Shashank Pathak Rani Waskle

Assistant Professor of Law B.A. LL. B (Hons)

Dharmashastra National Law University Semester: - II

Jabalpur, Madhya Pradesh. Roll No: - BAL/072/21

 TABLE OF CONTENT

S.NO TOPIC PG.NO

1 Acknowledgment 3

2 Research question & objectives 4

3 Introduction 5

4 Facts of the Case 6

5 Issues Involved in the Case 7

6 Contention of the Parties 7

7 Judgment of the Case 8

8 Rationale behind the Judgment 8

9 Analysis with respect to application of Balfour v. Balfour Ruling 9-10

10 Critical Analysis 11

11 Conclusion 12

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 Acknowledgment

The success and outcome of this project work required a lot of guidance and grace from
many people and I am remarkably privileged to have got this all along the accomplishing
the project. Whatever I have done is only with due supervision and guidance and I would
never forget to thank them.

I am remarkably indebted to DHARMASHASTRA NATIONAL LAW UNIVERSITY

for providing me such necessary assistance to successfully carry out this project work.

I would like to thank our honourable Vice-Chancellor Prof. (Dr.) V. Nagaraj and to our
Dean of Faculties, Dr. Manwendra Kumar Tiwari. I would also like to extend my gratitude
to my dear faculties, for providing me with all the help that was required. I am obliged and
thank Mr. Shashank Pathak for providing me a wonderful opportunity to do this project
and giving me support and guidance which made me accomplish the project duly. I am
remarkably thankful to her for providing such a pleasant support and guidance.

I extend my gratitude thanking my parents and my friends for being there and for their
unconditional love that gave me the strength to accomplish this wonderful project.

Rani Waskle
BAL/072/21

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Research Question

1. To delve into the concept of intention to create legal relationship in Indian context?
2. To study the impacts of Balfour v. Balfour in Indian legal regime?
3. To delve into the critical analysis of the Balfour v. Balfour in Indian context?

Research Objective

1. To find out the concept of intention to create legal relationship has applied in Indian
context.
2. To find out what impacts of Balfour v. Balfour does have in Indian legal regime.
3. To find out the application of Balfour v. Balfour in Indian context.

Research methodology
The Author will solely rely on the doctrinal research and all the secondary data that will include
Various judicial pronouncement, Research Articles, Blogs text books etc. available around the
internet.

Scope of Study

The scope of the study is to delve into the impacts of Balfour v. Balfour in Indian legal system
and to look into other study available with respect to the same. The scope of the study also
extends to the study of various judicial pronouncement with respect to the application of
Balfour v. Balfour in Indian legal regime.

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 Introduction

There have been a debate going in recent times, that the pivotal question preoccupying contract
theory has been the relationship between contract law and the moral practice of promising. It
is now known as the ‘contract and promise’ debate, and it has led to a resurgence of interest in
contract theory. we have debates about whether contract law is based on promise, tort on
corrective justice, unjust enrichment on property, and so forth. That the relationship between
legal rules, doctrines and categories and moral theories and principles.

The intent to contract doctrine is important for diversionists, because, they argue, it provides a
portal between promise and contract. If contracts are promises, why have the portal? The
doctrine suggests the existence of separate domains. In what follows, I set out the doctrine and
show how Balfour v Balfour, the case that brought intent to contract into existence,
encouraged diversionist thinking, with, as feminists have shown, damaging consequences for
women.

The question that the intent to contract doctrine is interpreted has other potentially far-reaching
doctrinal implications. So, for example many argue that consideration is merely evidence of
the existence of an intent to contract the view we take about intent to contract, might affect
what we think about consideration. It goes beyond the scope of this paper to explore all of these
ramifications; my aims are primarily theoretical. However, we should keep in mind that debates
about intent to contract go to the heart of debates about the nature and purpose of contract law
and doctrine in general.

According to intent to contract, an agreement is not legally enforceable unless the

parties intended for it to be legally binding. The test for intention is an objective
one, i.e., whether a reasonable person would conclude there was such an intention, The court
has to consider what the parties said and wrote in the light of all the surrounding circumstances,
and then decide whether the true inference is that the ordinary man and woman, speaking or
writing thus in such circumstances, would have intended to create a legally binding agreement.

There is a rebuttable presumption in English law that there is no such intention in the case of
social or domestic agreements between, for example, friends, parents and children, husbands
and wives or co-habiting partners. The opposite is presumed in commercial cases.

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 Facts of the Case

Mr. Balfour and his wife went to England for vacation. During their vacation, his wife became
ill and needed medical attention for the same.

They made an agreement that Mrs. Balfour would remain in England and that Mr. Balfour
would go back to Ceylon and would pay £30 to her every month until he returned. The
particular agreement was made when their relationship was fine. Later, their relationship got
sour and her husband stopped sending her money.

Mr Balfour was a Civil Engineer, and worked for the Government as a Director of Irrigation in
Ceylon (Sri Lanka). Sadly, in the course of vacation Mrs Balfour’s health became vulnerable
as she had developed rheumatoid arthritis, she was in need of medical treatment. So, they made
an agreement between them that Mrs Balfour would stay back in England for her treatment
whereas his husband had to return to Ceylon (Sri Lanka) for his employment purpose. Mr
Balfour agreed to send her an amount of 30 pounds a month for probable expenses of
maintenance until everything fall in place.

Everything was going fine in their relation; however, the relationship later soured. After Mr
Balfour returned to Ceylon, he did send the amount for some time, he wrote his wife a letter
that it would be better that if their separation become permanent and slowly their bonding
deteriorated and afterwards differences arose between them which resulted in their separation
and they were divorced. Now Mrs Balfour sued him for restitution of her conjugal rights and
for alimony equal to the amount her husband had agreed to send. In March 1918, Mrs Balfour
sued him to keep up with the monthly 30-pound payments as the allowance fell into arrears.

Mrs. Balfour sought to enforce this agreement. Later, they both got separated and were
divorced. The wife sued Mr. Balfour that he had promised to pay her money but failed to do
so. The additional judge of King’s Bench held that Mr. Balfour was under responsibility to
support and pay his wife, and there is a firm agreement between the two for which Mr. Balfour
appealed.

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 Issues Involved in the case

• Did Mr Balfour ever intend to enter into any sort of agreement with his wife Mrs
Balfour?

• Was Mr Balfour offer intended to be legally binding?

• Is the agreement between Mr and Mrs Balfour valid in nature at all?

• Does the contract between husband and wife enforceable in the court of law?

• Does the husband’s promise to pay 30 pound per month constitute a valid contract
which can be sued upon?

• Under what circumstances will a court decline to enforce an agreement between

spouses?

Contentions of the parties

Contention at the part of the Appellant (Mr Balfour)

The Agreement made between Mr Balfour and Mrs Balfour was purely domestic in nature. The
promise made by Mr Balfour of providing monthly expenses to his wife was a domestic
agreement and not a legal one. So, the husband didn’t have any intention of creating a legal
agreement, it does not hold any legal enforcement. Moreover, Mr Balfour never had any sort
of intention to form a legal agreement.

Contention at the part of the Respondent (Mrs Balfour)

It was held that the characteristics of the agreement was purely domestic in nature, Lord Justice
Atkin held that when a husband and wife enter into an agreement, they never intend to create
legal relationship. Both the parties must have an intention to create a legal relationship while
entering into an agreement, then only it becomes enforceable in court of law. Moreover, a court
will never take into account the domestic agreements between spouses made in daily course of
life. The agreement was outside the realm of contract altogether.

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 Judgment of the case

The court held that domestic agreements are not contracts. At the time of making these
agreements, there is no intention to create legal relations Because the parties did not have any
intention to file a suit therefore the Husband is not required to pay the amount of maintenance.
the lower court entered judgment in favour of the plaintiff and held that the defendant’s promise
to send money was enforceable.

The court held that Mr. Balfour’s consent was sufficient consideration to render the contract
enforceable and the defendant appealed. The court said that: It is essential that both the parties
should intend that an agreement be a legally binding way to become enforceable. The courts
will not interfere between the spouses in their day-to-day affairs. Mr. Balfour won the case.
Mr. Balfour as per this promise had no intention of entering a legal contract it was just a
promise, so Mrs. Balfour lost this case on the ground of domestic and social agreements, and
it is not enforceable under law.

Rationale behind the decision of the court

The court first recognized that certain forms of agreements do not reach the status of a contract.
In such an agreements one party is given a certain sum of money on a daily, weekly or on
monthly basis which can be termed as “allowance”. However, these agreements are not
contracts because the parties did not intend that they should be attended by legal consequences.
Initially at the first instance of the case, Justice Sargant had held that the claims made by Mrs
Balfour are valid and Mr Balfour should be entitled to pay her the maintenance which he
promised to pay.

Finally, Mr Balfour appealed in the court of appeal. In the court of appeal, it was held by the
bench of judges, Warrington LJ, Duke LJ, Atkin LJ that the agreement is not enforceable in
court of law. Atkin LJ observed it with regard to owing to its domestic nature. Whereas
Warrington LJ and Duke LJ did so because they doubted Mrs Balfour gave consideration. The
doctrine of intention to create a legal relation was invoked by Atkin LJ generally. One reason
the court was hesitant to treat these agreements as contracts, is that there would not be enough
courts to handle the volume of cases.

The court made an interesting argument in not enforcing these types of promises. The court
argues that if these promises are treated as contracts the flood gates will open. In one of the
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other cases of Jhones v Padavatton, Salmon LJ had said that this case is factual in nature. It
does not possess any legal presumption. Intention to create a legal relationship is one of the
essential elements required to enter into a contract.

Analysis with respect to application of Balfour v. Balfour Ruling

The rule that applies in this case is relating to the separation of contract from
promise and does agreement between spouses have any legal binding authority to
enforceable as contract in court of law. The peculiar feature of the action was that Mrs.
Balfour was suing in contract, claiming that Mr. Balfour should maintain her not because he
had married her but because he had promised he would do so.

This case involved a husband and wife so this arrangement is just a domestic or
social agreement or arrangement. To enforce any agreement as a contract we need some
essential elements in that agreement which are following:
Consideration
Legal intention to form the contract
Agreements such as these are outside the realm of contracts altogether. Another rule is that in
which court looked upon is which agreement will result into contract between spouses.

In the present case at first instance Sargant, J., held that Mrs. Balfour's consent was sufficient
consideration to render the contract enforceable and the defendant appealed. But in appellate
court it was held by bench of Warrington LJ, Duke LJ, Atkin LJ that it is not enforceable
contract. Warrington LJ and Duke LJ did so mainly because they doubted that the wife gave
consideration. Atkin LJ, on the other hand, invoked the intention to create legal relations
doctrine to decide the case, a doctrine that up to that point could only be found in the textbooks.

It can be said that the Doctrine is based upon public policy; that is to say that, as a matter of
policy, the law of contract ought not to intervene in domestic situations because the courts
would then be swamped by trifling domestic disputes.

The Court was of the view that mutual promises made in the context of an ordinary domestic
relationship between husband and wife do not usually give rise to a legally binding contract
because there is no intention that they be legally binding. However, the Court did concede that
there may be circumstances in which a legally binding agreement between a husband and wife

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may arise. The case is notable, not obvious from a bare statement of facts and decision. The
claim was under contracts and not under the conjugal rights held by Mrs. Balfour.

This was a claim without precedent and the lordship's judgement will show how reluctant they
were to extend the law of contacts into the area of matrimonial rights and duties, in which it
had previously played very little part. Lord Atkin's judgement attracted new attention and the
requirement of 'intention to create legal relationship' achieved prominence. The intention is
sometimes referred to as an animus contravened. As Salmon LJ made clear in the latter case
Jones v Padavattonia), this is a factual, not legal, presumption.

With respect to Indian legal framework, it is still an open question whether in the express
provisions in the Indian Contract Act, 1872, the requirement of intention to contract is
applicable in India "The agreement between the Balfours was not a legally enforceable contract
but merely an ordinary domestic arrangement. There was no intention to create legal relations
and Mrs. Balfour could not sue for the alleged breach of it. The decision of lower court was
reversed by Court of appeal."

Whatever the exact status of Atkin LJ's presumption, and indeed this is an issue on which there
has been some controversy, its effect has been to reinforce the sense that contractual and
personal relations, like Venice and Belmont, are different realms (Merchant of Venice. contrast
between the worlds of commerce and intimacy). The diversity in the reasoning of the court
makes it difficult to discern the precise ratio of the case. We must now turn to consider the
scope of the presumption that parties to domestic agreements do not intent to create legal
relationship, the factors that have been used by the courts in order to rebut the presumption. the
rationale of the presumption and finally, the relationship, in the domestic context, between the
doctrine of intention to create legal relations and the doctrine of consideration.

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 Critical Analysis

In my opinion after studying and going through the case of Balfour v Balfour (1919) we
understand that a mere social agreement made within a family cannot be enforced in the court
of law, these agreements do not hold any legally binding authority. The relationship between a
husband and wife is one where two parties agree to take a walk together it’s a bond of
hospitality. Nobody would suggest in ordinary circumstances that those agreements result in
what we know as a contract.

Warrington’s reasoning takes a legal approach to a rather social dilemma. The case gives us a
glimpse of traditional patriarchal society where the role of women in society is restricted to the
household due to which she was economically independent on her husband. Their dependence
made them vulnerable to promises like the one which he saw in this present case. It can be
implied that the husband had to provide for his wife in any circumstances. By distinguishing
between a contract and a promise, the doctrine of Intention to create Legal Relation carved out
from Lord Atkin’s judgement in Balfour v Balfour.

He reasoned that such agreements like the one which made in this case are common and even
if Mrs Balfour’s had provided consideration for Mr Balfour’s promise, then also her claim
would have failed as the parties had not intended to create legal relation. He presumed that due
to the nature of the relation between the parties, there was no intention to create legal relation.
He argues that agreement such as this fall outside the contract law. Lord Atkin’s aim to
safeguard those promises which all of us make regularly in a domestic arrangement. Atkin
protected the private domain of life from the interference of the court.

It is difficult to see here how the Court arrived at the conclusion that there was no intention to
create a legal relationship. The agreement related to a serious matter, the parties had separated
(unlike in Balfour where the parties were still in amity at the time of agreement), and there was
nothing about the husband’s proviso that was particularly unclear or could not have been made
clearer by the implication of further terms. For example, in his dissent, Lord Denning MR
implied the term that ‘if the husband found that he could not manage to keep up
the payments, he could, on reasonable notice, determine the agreement’

By not recognising the legal validity of the promise, the Court left the wife vulnerable.
Furthermore, the judicial reluctance to enforce agreements made in domestic settings leads to
damaging distributive consequences for women. So, for example women suffer

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disproportionality when agreements to perform domestic labour are not legally binding,
because it is still women predominantly who carry out this work. Non-intervention perpetuates
existing inequalities, and leaves men with the power to dominate women.

CONCLUSION

In our daily lives, husbands Say a hundred things to wives like I’ll build you a Taj Mahal, I
will give you a platinum ring. will the husbands do all these things in their life? there will be
hundreds of promises your parents also do it for you in return you will also give them hundreds
of promises. now if a husband does not build the Taj Mahal if your father or mother does not
give you a bike on the next birthday can you file a case in court was the question?

The above case signifies how a social contract cannot be enforced by law. These agreements
are of social nature, and it is significant to note here that for a contract to be enforceable there
must be an intention of the legal relationship between the parties and not just a mere social
relation. Whether a promise is made or not, it is up to the parties to keep it to the best of their
abilities. The parties cannot enforce, and the judges who made the decision concluded that the
court cannot intervene in marital affairs and that it is up to the parties to solve their own
problems. As a result, the Balfour law provided a new perspective on contract validation.

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