Combe v Combe
Also Known As Coombe v Coombe
Court of Appeal
Citations:  2 KB 215;  1 All ER 767;  1 TLR 811; (1951) 95 SJ 317; [1947-51] CLY 3033.
The parties were a couple undergoing a divorce. Between the grant of the decree nisi and the date of the decree absolute, the husband promised the wife that he would pay her £100 a year (tax free). As a result of this, the wife decided not to apply to the Divorce Court for a maintenance order. However, she made this decision independently – not in return for the husband’s promise to pay or at his request.
The husband never made the payments. The wife sued him either for breach of contract or on the grounds that his promise was enforceable in estoppel. The husband argued that the wife had not provided consideration for his promise. As such, he was not bound by it.
- Was the wife’s promise good consideration?
- Could the wife rely on estoppel to enforce the husband’s promise?
The Court held in favour of the husband. The wife’s decision not to apply for maintenance was not requested by the husband or made in exchange for his promise to pay. It was therefore not good consideration. Even if it had been, the agreement would be void as contrary to public policy: parties cannot agree to oust the jurisdiction of the courts. Promissory estoppel did not grant a cause of action and so was inapplicable in this case.
This Case is Authority For…
Promissory estoppel provides a defence where three conditions are met:
- One party, by words or conduct, makes to the other a promise which he knows or intends that the other will rely on;
- That promise is intended to affect their legal relations;
- The other party relies on that promise and acts on it.
Where promissory estoppel arises, the party who made the promise is estopped from insisting on their strict legal rights. There is no need for the promise’s recipient to provide consideration.
However, promissory estoppel can only be used as a shield, not a sword. In other words, it can provide a defence to a claim, but cannot be used as a cause of action.
This case shows that something only constitutes consideration if it is made at the other party’s request or in exchange for the other party’s promise. A party cannot turn the other’s promise into a binding contract by undertaking some performance or making some promise that the other party neither wanted nor reasonably expected.