Ward v Byham
Court of Appeal
Citations:  1 WLR 496;  2 All ER 318; (1956) 100 SJ 341;  CLY 1472.
The parties had an illegitimate child. Initially, the couple lived together, but eventually the father kicked the mother out. The child remained with the father, but her well-being began to suffer. Some time later, the father offered to let the mother have the child and pay her £1 a week so long as she looked after the child well and kept her happy. The mother agreed and performed accordingly. The father later married and discontinued the payments.
The mother sued the father for breach of contract. The father argued that the mother had not provided any consideration for the agreement. This was because a statute at the time placed the duty of maintaining illegitimate children on the mother. Accordingly, the mother was already legally bound to look after her child. Therefore, her promise to do this was not good consideration.
- Had the mother provided consideration for the agreement?
The Court held in favour of the mother. The mother’s agreement was good consideration. This was even though she was legally bound to maintain the child.
This Case is Authority For…
This case is usually cited as authority for the proposition that an agreement to go beyond one’s legal duties is good consideration. Morris LJ focused on the fact that the father was not asking the mother to fulfil her legal duty. Rather, he asked her to improve the child’s well-being and make her ‘happy’. The judges might be interpreted, therefore, as saying that she went beyond her legal duty.
However, Lord Denning explicitly stated that his decision assumed that the mother was only doing what she was legally bound to do. He then disagreed with the proposition that existing legal duties could not be the basis for good consideration. He thought that as long as the performance benefits the other party, it should be treated as good consideration. The other judges did not challenge this.
It is therefore possible that the mother succeeded because the judges considered a bare promise to perform her statutory duty to be good consideration. The problem with this is that it conflicts with the ruling in Collins v Godefroy (1831) 1 B & Ad 950. That case held that the performance of legal duties is not good consideration.
This case potentially conflicts with Thomas v Thomas (1842) 2 QB 851, which held that consideration must have some economic value. If the consideration was the promise to make the child ‘happy’, this seems to be a purely emotional promise.
It is possible that this case would be decided differently today. Obligations to pay child maintenance are much more robust in the modern era: there is no need to distort the meaning of consideration to achieve the result the court was after.