Combe v. Combe

"Combe v Combe", [1951] 2 KB 215 is a famous English case on promissory estoppel. An ex-wife tried to take advantage of the principle that had been reintroduced in the High Trees case to enforce her husband's promise to give her maintenance. The Court held that promissory estoppel could not be applied. It was available only as a defence and not as a cause of action.

Background

Mr and Mrs Combe were a married couple. Mr Combe promised Mrs Combe that he would pay her an annual maintenance. Their marriage eventually fell apart and they were divorced. Mr Combe refused to pay any of the maintenance he had promised. Seven years later Ms Combe brought an action against Mr Combe to have the promise enforced. There was no consideration in exchange for the promise and so no contract was formed. Instead, she argued promissory estoppel as she had acted on the promise to her own detriment.

At first instance the Court agreed with Mrs Combe and enforced the promise under promissory estoppel. However this decision was then appealed.

Opinion of the Court

Lord Denning reversed the lower court decision and found in favour of Mr Combe. He elaborated on the doctrine from High Trees. Stating the legal principle, Denning wrote::"where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. He must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration but only by his word."

He stated the estoppel could only be used as a "shield" and not a "sword". In High Trees, there was an underlying cause of action outside the promise. Here, promissory estoppel created the cause of action where there was none. In this case, the court could not find any consideration for the promise to pay maintenance. He further stated that the High Trees Principle should not be stretched so far as to abolish the doctrine of consideration, " [t] he doctrine of consideration is too firmly fixed to be overthrown by a side-wind....it still remains a cardinal necessity of the formation of a contract...".

While it may be true that the wife did forbear from suing the husband on the arrears for seven years, this forbearance was not at the request of the husband.