• In the case of Combe v Combe [1951] 2 KB 215, the doctrine of promissory estoppel was considered in a domestic situation. Whether the contract law concept would apply, or would not.

Facts of Combe v Combe [1951] 2 KB 215

  • Husband, upon petition of divorce promised his wife, C, £100 a year free of tax
  • This promise from the husband stopped the C going to Divorce Court for maintenance, by her own choice
  • The C did not give any consideration for such a promise
  • When the husband did not make good on his promise, the C took her claim to court and relied upon the concept of promissory estoppel which was applied 4 years prior in this High Trees case
  • At first instance, the court sided with the C, however the husband appealed this

Issues in Combe v Combe [1951] 2 KB 215

  • Was the C right here, was there a promise relied upon that should be paid for, agreeing with the first instance decision? Or was the husband in his right of not paying, meaning the court would allow the appeal?
  • In other words, did the principle of promissory estoppel apply or not?

Held by the Court of Appeal

  • Appeal allowed, the principle of promissory estoppel did not apply. No consideration was given by the wife, she had not promised not to apply for maintenance (even if she did, this would have just deprived her of that right) and her refrainment from applying was not made by request of the D, express of implied.

Lord Justice Denning

  • “Much as I am inclined to favour the principle stated in the High Trees case, it is important that it should not be stretched too far, lest it should be endangered … principle does not create new causes of action where none existed before” [218]
  • Lord Justice Denning made sure to mention the importance of consideration: “the principle never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action” [220]
  • As for the decision made at first instance, Lord Justice Denning had to say, “I fear that it was my failure to make this clear which misled Byrne, J … He held that the wife could sue on the husband’s promise as a separate and independent cause of action by itself, although, as he held, there was no consideration for it. That is not correct. The wife can only enforce it if there was consideration for it” [221]

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