Combe v. Combe

Combe v. Combe

[1951] 2 KB 215

(Consideration—PE—Restraint of Court Proceedings)

FACTS: A husband, upon divorce, promised his wife certain sum a year as permanent maintenance. In reliance upon this promise, the wife forbore to apply in the Court for maintenance. The Husband failed to make the payments and Wife sued him on the promise.


1) Whether there was any consideration by Wife to the promise made by the Husband?

2) Whether the rule of Promissory Estoppel can be of any avail to Wife?


King’s Bench Division:

The only consideration which could be deduced from the circumstances is implied promise by Wife not to sue Husband for permanent maintenance, but that any promise in restraint of applying to the Court was void and unenforceable.

Whenever a promise is made with the intention of creating legal relationship-a promise that is intended to be acted on and was in fact acted on by the other party (here, by forbearing to sue for 7 years)-then promisor is abstained from going back on the promise for it will be inequitable for him to do so. (Promissory Estoppel)

Court of Appeal: 

There is no consideration merely because there is detrimental action by the promisee in reliance on the promise, but not in return for it.

In present case, husband neither expressly nor impliedly requested wife to forbear from going to the Court, hence there was no consideration for husband’s promise. Her forbearance was neither intended by the husband nor was it at the husband’s request.

Even if, in return for the promise, wife had promised to refrain from applying to the Court, such a promise being void and non-binding, would not be any real consideration.

Promissory Estoppel doesn’t create new causes of action when none existed before; it is a shield and not a sword. Principle of Promissory Estoppel is to be employed to obviate the necessity for consideration in cases where parties are already bound contractually and one party promises to modify, waive or suspend its strict legal right. But in those cases also, it is to be used only as a part of cause of action and not an action in itself. (Central London case)

In present case, the principle of PE therefore can’t do away with the necessity of consideration when that is an essential part of the cause of action.

Author: Vishrut Kansal (National University of Juridical Sciences, Kolkata)

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