Contract, Consideration and the Critical Path

Author(s): John Adams and Roger Brownsword

Source: The Modern Law Review , Jul., 1990, Vol. 53, No. 4 (Jul., 1990), pp. 536-542
Published by: Wiley on behalf of the Modern Law Review

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 The Modern Law Review [Vol. 53

against
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Contract,
Contract, Consideration
Considerationand
andthe
theCritical
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Path
John
John Adams*
Adams*and
andRoger
RogerBrownsword**
Brownsword**

In Williams
Williams vvRoffey
RoffeyBros
Brosand andNicholls
Nicholls(Contractors)
(Contractors)
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in the
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words of
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PurchasLJ,
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classic
Stilk
Stilk
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v Myrickcase'2
case'2
- the
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Court
Court
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held
held that
that aa promise
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carry
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for the
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The significance
significanceof
ofthis
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fourfold.
fourfold.
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First,
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it casts
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onlyonly
on the
on principle
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in Stilk
Stilk vv Myrick3
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hasbeen
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inin
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case.4
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it confirms one one
of the
of the
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thedeath-of-contract
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thinking:
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namely,
thatthat
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86 (1982) 4 EHRR 293.

87 See, in particular, the dictum of Lord Goff in a sex discrimination case concerned with the provision
of fewer places at single sex schools for girls than for boys: 'it is not necessary to show that the council
is in breach of its duties under s 8 of the 1944 Act. All that is necessary ... is that the council, in carrying
out its functions under that section, did an act (or deliberately omitted to do an act) where such act or
omission constituted sex discrimination': Equal Opportunities Commission v Birmingham City Council
[1989] 1 All ER 769, at 776.
88 See, for example, the comments in 1981 by Colin Wringe in Children's Rights. A philosophical study
(Routledge and Kegan Paul) Chapter 16.
89 H.C. Dent, op cit.

*Professor of Commercial Law, University of Kent.

**Reader in Law, University of Sheffield.

1 [1990] 1 All ER 512.

2 ibid, at p. 527.
3 (1809) 2 Camp. 317.
4 (1602) 5 Co. Rep. 117a.
536

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July 1990] Contract, Consideration and the Critical Path

that detriment is incurred by the promisee.5 Third, it signals that the courts, in deciding
whether or not to enforce a promise, may be guided less by technical questions of
consideration than by questions of fairness, reasonableness and commercial utility.6 And,
fourth, although the case does not itself involve any element of duress, by relaxing the
consideration requirement, it shifts the burden of regulating price re-negotiation on to
the doctrine of economic duress.7
In Williams v Roffey, the defendants were main contractors employed by Shepherds
Bush Housing Association Ltd to refurbish 27 flats at a block of flats in London. The
defendants engaged the plaintiff to carry out the carpentry work, this comprising the
carpentry work on the roof of the block and the first and second fix carpentry work in
the flats themselves. The contract price for the work was ?20,000, with an implied term
(as the trial judge ruled) providing for interim payments at reasonable intervals. Before
the subcontract work was completed, however, the plaintiff ran into financial difficulty,
partly - so the trial judge found - because the work had been underpriced and partly
because of the plaintiffs inadequate supervision of his men. At the material time, the
plaintiff had completed the roofing work, the first fix to all 27 flats, and he had substantially
completed the second fix to 9 of the flats. The defendants, fearing that the carpentry work
would not be completed on time, and facing an agreed damages clause8 in the main
contract should it overrun, promised to pay the plaintiff an additional sum of ?10,300.
This extra money was to be paid at the rate of ?575 for each flat on which the carpentry
work was completed. In the light of this agreement, the plaintiff proceeded. However,
with the carpentry work in 17 of the flats substantially completed, he ceased working.
On these facts, the trial judge held that the plaintiff was entitled to ?5,000, made up
as follows: (i) ?2,200 as a reasonable proportion of the outstanding money on the original
?20,000 contract; and (ii) ?2,800 in respect of the additional sums promised (calculated
as 8 flats at ?575 (?4,600) less deductions for minor defects and incomplete items). Given
that the defendants had actually paid only ?1,500 of this, the plaintiff was within his rights
to cease work and to recover a net sum of ?3,500.
The defendants, on appeal, contended that the promised additional payments were not
recoverable because: (i) the payments were due only on full, not merely substantial
completion of the work; and (ii) the promise was not supported by consideration. The
Court of Appeal unanimously rejected these contentions.

5 Seminally, see Gilmore, The Death of Contract (Columbus, Ohio: Ohio State University Press, 1974),
and Atiyah, 'Promises, Obligations and the Law of Contract' (1978) 94 Law Quarterly Review 193. For
a recent summary, see Atiyah, 'The Move from Agreement to Reliance in English Law and the Exclusion
of Liability Relating to Defective Goods,' in Harris and Tallon (eds) Contract Law Today (Oxford:
Clarendon Press, 1989) especially pp 21-30.
6 Thus, for example, at [1990] 1 All ER 512, 524, Russell LJ said: 'In the late twentieth century I do
not believe that the rigid approach to the concept of consideration to be found in Stilk v Myrick is either
necessary or desirable. Consideration there must still be but in my judgment the courts nowadays should
be more ready to find its existence so as to reflect the intention of the parties to the contract where the
bargaining powers are not unequal and where the finding of consideration reflects the true intention of
the parties.' Generally, cf. Adams and Brownsword, Understanding Contract Law (London: Fontana,
1987) especially pp 86-87.
7 For the roots of the modem doctrine, see Occidental Worldwide Investment Corp. v Skibs A/S Avanti:
The Siboen and the Sibotre [1976] Lloyd's Rep 293, and North Ocean Shipping Co v Hyundai Construction
Co: The Atlantic Baron [1979] QB 705; on the latter of which, see Adams (1979) 42 Modem Law Review
557. For attempts to locate the foundation of the doctrine, see Pao On v Lau Yiu Long [1980] AC 614,
and Universe Tankships Inc. of Monrovia v International Transport Workers' Federation [1983] 1 AC
366. For the regulative force of the doctrine, see B and S Contracts and Design Ltd v Victor Green
Publications Ltd [1984] ICR 419, Atlas Express Ltd v Kafco (Importers and Distributors) Ltd [1989]
1 All ER 641, and Vantage Navigation Corporation v Suhail and Saud Bahwan Building Materials LLC:
The Alev [1989] 1 Lloyd's Rep. 138, in each of which cases the doctrine was applied for the benefit
of a party who agreed to a re-negotiation 'over a barrel.'
8 The judgments refer to the relevant clause as a 'penalty clause.' Although it is commonplace in the
construction industry to talk about the contract being 'on penalty' for late completion, we assume that
the clause in question was simply a liquidated damages clause.

537

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The Modern Law Review [Vol. 53

Substantial Completion

The agreement for the additional sums provided that ?575 per flat was 'to be paid on
the completion of each flat.' Without any explanation, the trial judge ruled that the effect
of this provision was that, as the carpentry work on each flat was substantially completed,
the plaintiff became entitled to payment for the work done. The Court of Appeal, relying
on Hoenig v Isaacs9 and the doctrine of substantial performance, upheld the trial judg
on this point. However, the basis of this part of the decision is less than clear.
In principle, there are two different ways of tackling a contractual provision for payment
on completion. One way (let us call it 'the construction approach') is to treat its meaning
as a matter of contractual intention; the other way (let us call it 'the regulatory approach')
is to regulate its meaning in such a way as to conform with principles of fair dealing (in
particular, to avoid unjust enrichment). If the construction approach is adopted, the first
question is whether the parties intended the clause to operate as a condition preceden
to the obligation to pay. If they did so intend, then it becomes necessary to identify the
relevant condition (eg 'full completion,' 'apparent completion,' or 'substantial completion'
of the work). If the parties did not intend the provision to operate as a condition precedent,
then it becomes necessary to determine what they intended. One possibility is that they
intended the clause simply to signal their accounting intentions (ie that, in the ordinary
way of things, payment would be made on completion). However, so understood, the
clause would not impinge on the contractor's substantive entitlement to payment. Th
alternative approach, the regulatory approach, disregards contractual intention. All tha
matters is that contractors who deserve to be paid should be paid, while those who do
not deserve to be paid may be sent away empty-handed. Within this approach, the ruling
principle is that contractors deserve to be paid for work done provided that they have
substantially completed.
In the light of these remarks, two interpretations of the decision in Williams v Roffey
look plausible: (i) applying the construction approach, the provision was a condition
precedent to payment, the condition being that the plaintiff must substantially complete;
or (ii) applying the regulatory approach, the plaintiff, as a matter of law, was entitled
to be paid on substantial completion. However, the tenor of Glidewell LJ's judgment -
this being the only one of the judgments to address the question seriously - suggests
that the decision rests on the second of these approaches.10
Although we cannot pursue these matters here, this prompts two thoughts. First, bearing
in mind that this was not any ordinary lump sum contract, but an arrangement specifically
designed to get the work completed, was it altogether appropriate to displace contractual
intent in favour of the regulatory approach?11 Second, how was the plaintiff able to argue
that he had substantially performed when, according to the trial judge's calculations, ?1,800
(for defects and omissions) had to be deducted from the additional sum of ?4,600?12 In
short, why was the plaintiffs claim treated so generously?'3

9 [1952] 2 All ER 176.

10 [1990] 1 All ER 512, 516-517.
11 In a sense, the parties' intentions were academic, the defendants' promise of additional payment ha
failed to keep the plaintiff working. However, it is at least arguable that the optimal arrangement fr
the point of view of both parties (and, therefore, the one intended) was that the plaintiff was to be
as he completed the work on each flat. Such an arrangement promised a steady cash flow for the plain
and should have enabled the defendants to maintain regular progress with the refurbishing work. It sh
also be borne in mind that: (i) at the time of the agreement to pay additional sums, the plaintiff had receiv
80% of the contract price even though more than 20% of the work was outstanding; and (ii) the
arrangement replaced what had hitherto been a haphazard method of payment (working to the defend
disadvantage), see [1990] 1 All ER 512, 524.
12 Cf. the Court of Appeal's decision in Bolton v Mahadeva [1972] 1 WLR 1009.
13 Cf. our comments in note 11 supra.

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July 1990] Contract, Consideration and the Critical Path

Consideration

Given the long-standing principle of Stilk v Myrick, how could the plaintiff be entitled
to recover any part of the additional payments? One might argue that, in Stilk v Myrick,
the promise was gratuitous, or that the promisor derived no benefit; but these lines of
argument look question-begging and unconvincing. The better answer, and the answer
most explicitly adopted by Purchas LJ,14 must be that Stilk v Myrick was a case involving
what would nowadays be recognised as economic duress.'5 Even so, granted that there
was no duress in Williams v Roffey, what consideration did the plaintiff provide?
Building on the analogous cases of Ward v Byham,'6 Williams v Williams,'7 and Pao
On v Lau Yiu Long,'8 Glidewell LJ summarised the legal position as follows:
(i) if A has entered into a contract with B to do work for, or to supply goods or services to,
B in return for payment by B; and
(ii) at some stage before A has completely performed his obligations under the contract B has
reason to doubt whether A will, or will be able to, complete his side of the bargain; and
(iii) B thereupon promises A an additional payment in return for A's promise to perform his
contractual obligations on time; and
(iv) as a result of giving his promise, B obtains in practice a benefit, or obviates a disbenefit; and
(v) B's promise is not given as the result of economic duress or fraud on the part of A; then
(vi) the benefit to B is capable of being consideration for B's promise, so that the promise will
be legally binding.'9

Of the many questions raised by this summary, let us pick out the following two: in the
light of (iv), what practical benefit did accrue to the defendants in Williams v Roffey?
And what are the implications of the decision for gratuitous promises and the residual
categories of insufficient consideration?
Counsel for the defendants conceded that the promise to pay additional sums secured
some practical benefit. In particular, it improved the chances of the plaintiff continuing
to work which, in turn, meant that the defendants might avoid having to pay liquidated
damages to the Housing Association for late completion, and might avoid the inconvenience

14 [1990] 1 All ER 512, 525-526.

15 In the earlier case of Harris v Watson (1791) Peake 102, in which the facts were similar to Stilk v Myrick,
Lord Kenyon CJ said: 'If this action were to be supported, it would materially affect the navigation of
this Kingdom ... [If sailors were] in times of danger entitled to insist on an extra charge on such a promise
as this, they would in many cases suffer a ship to sink, unless the captain would pay any extravagant
amount they might think proper to make.' Lord Ellenborough, in Stilk v Myrick, doubted Lord Kenyon's
principle, and stated the true principle to be that the agreement was void for want of consideration. However,
almost certainly he was not using the term 'consideration' in its modern sense, but rather as a causa
promissionis - ie there was no single doctrine of consideration. Rather, there were a number of
considerations treated as adequate to support an action for breach of promise; see Simpson, History of
the Common Law of Contract (Oxford: Oxford University Press, 1975), and 'Innovation in Nineteenth
Century Contract Law' (1975) 91 Law Quarterly Review 247, 262. To cite the case in the way in which
it is commonly done today, is to misread it: the Court of Appeal were quite correct in declining to apply
it to the present circumstances.
16 [1956] 1 WLR 496. In The Alev [1989] 1 Lloyd's Rep. 138, 147, however, Hobhouse J flatly rejected
the contention that cases like Ward v Byham showed that performance of an existing duty constituted
good consideration. Technically, no doubt, Hobhouse J was quite correct to distinguish between the different
categories of existing duty cases. Yet, in the light of the developing doctrine of economic duress, he
indicated that there was no warrant to refuse to recognise an item as consideration 'even though it may
be insignificant and even though there may have been no mutual bargain in any realistic use of that phrase',
ibid. In this respect, Hobhouse J seems to have been caught up in a tension between formalist and realist
reasoning, see Adams and Brownsword, 'The Ideologies of Contract' (1987) 7 Legal Studies 205.
17 [1957] 1 WLR 148.
18 [1980] AC 614.
19 [1990] 1 All ER 512, 521-522.

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 The Modern Law Review [Vol. 53

and expense involved in engaging another carpenter to complete the subcontract work.20
Given that the carpentry work was on 'the critical path of the defendants' global opera-
tions,'21 this all seems perfectly plausible. The point is that the defendants, guided by
economic imperatives, preferred to cut their losses rather than gain a Pyrrhic victory by
standing on their legal rights.22 And, in coming to terms with this commercial reality,
in adopting what Russell LJ called 'a pragmatic approach to the true relationship between
the parties,'23 the Court was surely absolutely right.
What, however, is the extent of this bold step? Consider Glidewell LJ's six propositions,
but with the factual situation turned on its head:

(i) if A has entered into a contract with B to do work for, or to supply goods or services to,
B in return for payment by B; and
(ii) at some stage before B has completely performed his obligations under the contract, A has
reason to doubt whether B will, or will be able to, complete his side of the bargain (ie whether
B will be able to pay); and
(iii) A thereupon promises B that, in return for B's promise to pay such a sum, he will accept
a lesser payment from B; and
(iv) as a result of giving his promise, A obtains in practice a benefit, or obviates a disbenefit; and
(v) A's promise is not given as the result of economic duress or fraud on the part of B; then
(vi) the benefit to A is capable of being consideration for A's promise, so that the promise will
be legally binding.

It is submitted that the logic of Williams v Roffey is that, in a case which instantiates these
elements, the court must hold the creditor (A) to his word. If this is correct, landmark
decisions such as Pinnel's case and Foakes v Beer24 will have to be reconsidered.25 After
all, the parallel is obvious: whether you are dealing with a stricken creditor or a stricken
debtor, in certain circumstances, the economic imperatives may dictate that financial
adjustments should be made (the doctrine of consideration notwithstanding). It is arguable,
of course, that, in such a situation free of duress or fraud, the doctrine of equitable estoppel
may be utilised to protect the debtor.26 Indeed, in Williams v Roffey, Russell LJ indicated
that he would have welcomed the development of just such a line of argument.27

20 For the risks involved in a main contractor having to take on a new nominated subcontractor, see Percy
Bilton Ltd v Greater London Council [1982] 2 All ER 623. Presumably, the risks involved in having
to replace a domestic subcontractor would be equally serious, even though the main contractor would
not have to wait for the client's nomination.
21 [1990] 1 All ER 512, 525.
22 Cf. the standard socio-legal literature on the practical reason of commercial contractors, especially Macaulay,
'Non-Contractual Relations in Business' (1963) 28 American Sociological Review 55, and Beale and
Dugdale, 'Contracts between Businessmen: Planning and the Use of Contractual Remedies' (1975) 2 British
Journal of Law and Society 45. And, for an interesting recent attempt to place this work within a more
general theoretical framework, see P. Vincent-Jones, 'Contract and Business Transactions: A Socio-Legal
Analysis' (1989) 16 Journal of Law and Society 166.
23 [1990] 1 All ER 512, 524.
24 (1884) 9 App Cas 605.
25 Apart from the opportunity to reconsider the commercial sense of the rule in Pinnel's case, this may
be welcomed as a chance to clean up the historical record. Historically, the important feature of Pinnel's
case is that it concerned a bond. The rule may seem draconian, but it was a restricted rule, applying
specifically to penal bonds (see generally Simpson, 'The Penal Bond with Conditional Defeasence' (1966)
82 Law Quarterly Review 392). The action on a bond was debt sur obligation, and until the nineteenth
century this remained the only form of action to enforce a debt due under a deed. In Cumber v Wane
(1718) 1 Strange 426, however, the law seems to have taken a wrong turn by applying Pinnel's case
out of context, where the action was indebitatus assumpsit and the debt did not apparently arise on a
penal bond. Regrettably, despite extensive discussion of Cumber v Wane in Foakes v Beer, the House
did not pick up this error, and the true intent of Pinnel's case was misread (see Simpson, loc cit,
pp. 404-405). Arguably, therefore, the correct step would be to declare that Foakes v Beer was simply
wrong.
26 Cf. D. and C. Builders Ltd v Rees [1966] 2 QB 617. For an (unsuccessful) attempt to employ equitable
estoppel in a Stilk v Myrick situation, see Syros Shipping Co. S.A. v Elaghill Trading Co.: The Proodos C
[1980] 2 Lloyd's Rep. 390.
27 [1990] 1 All ER 512, 523.

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July 1990] Contract, Consideration and the Critical Path

However, this omission may have been a blessing in disguise, for it resulted in the court
squarely facing up to the doctrine of consideration and its place in the commercial world.
This leaves a number of unresolved cases, especially past consideration and the promise
of a gift. Although the court in Williams v Roffey advocates a more flexible approach
towards the requirement of consideration, it is emphasised that a gratuitous promise, pure
and simple, remains unenforceable.28 Quite probably, past consideration and the promise
of a gift are seen as falling into this category. For, whilst the detriment requirement has
been abandoned, the likelihood is that, at least in the short term, some kind of 'objective'
benefit requirement will be deployed to hold the line. In other words, it will not be enough
for the promisee to argue that the (gratuitous) promisor derived some kind of subjective,
intangible, benefit from his promise.
As we suggested in our introductory remarks, Williams v Roffey represents an important
staging post in the transformation of our conception of consideration. Judicial rhetoric
still clings to the remnants of an exchange model, of benefit being derived in return for
the promise. However, the driving force behind the recent decisions on the existing duty
question quite clearly has been a mixture of considerations of fairness and commercial
utility (aided by the developing doctrine of economic duress). In Williams v Roffey, the
court appreciated both that the defendants' promise was commercially necessary and that
it would be unconscionable for them to go back on their word. Moreover, not only did
the court appreciate these matters, it was prepared to act on them.
The implications of the court's robust approach, however, extend beyond the doctrine
of consideration. For instance, it may become necessary to review the application of the
frustration principle, which, in its moder manifestation, firmly sets its face against assisting
a contractor to re-negotiate an underpriced contract, despite the underpricing arising through
circumstances beyond the control of the parties.29 Yet, in Williams v Roffey, the court
bends over backwards to indemnify a contractor against the effects of underpricing in
circumstances where the underpricing is entirely within his control. The most immediate
question, though, concerns the doctrine of economic duress. The point is that relaxation
of the consideration requirement (as betokened by Williams v Roffey) entails that economic
duress becomes the primary regulative principle in relation to price re-negotiation. This
raises large questions; but a brief comment must suffice.
As Andrew Phang has recently observed in the Review,30 the burgeoning case-law
dealing with economic duress has failed to put the doctrine on a clear footing. There are
two leading issues. First, what are the necessary and sufficient conditions for the principle
to apply? And, second, do these criteria (whatever they are) apply universally to all
contractual situations? In response to the first question, the relevant conditions appear
to revolve around three elements: the conduct of the party applying the pressure; the conduct,
position and response of the party to whom the pressure is applied; and the balance of
the resulting agreement. Such is the formal structure of this question, but the substantive
jurisprudence will take some time to take shape.31 The second question is no less diffi-
cult. Should the doctrine of economic duress be applied uniformly to all transactions, so
that no discrimination is made between agreements and re-negotiated agreements, between
commercial and consumer agreements, and so on? In the face of such uncertainties, it
is tempting to think that we might, perhaps, be better off with the old law. After all,
contractors at least knew where they stood. Such a view, however, would be a mistake.
The old law bought calculability only at the price of ignoring commercial reality. In this
sense, Williams v Roffey, in conjunction with the doctrine of economic duress, represents

28 ibid, at pp. 522 (Glidewell LJ, by implication), 524 (Russell LJ, explicitly), and 525 (Purchas LJ, by
implication).
29 See Davis Contractors Ltd v Fareham UDC [1956] AC 696, where, of course, precisely as in Williams
v Roffey, it was an attempt to re-negotiate an underpriced construction contract that was in issue.
30 Phang, 'Whither Economic Duress? Reflections on Two Recent Cases' (1990) 53 MLR 107.
31 Cf. Dalton, 'An Essay in the Deconstruction of Contract Doctrine' (1984-85) 94 Yale Law Journal 997.

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The Modern Law Review [Vol. 53

both
both an
an opportunity
opportunityand
anda achallenge.
challenge.For,
For,
byby
weakening
weakening
thethe
consideration
consideration
requirement,
requirement,
Williams
Williams vv Roffey
Roffeypresents
presentsthetheopportunity
opportunity for
forreasonable
reasonable re-negotiations
re-negotiations
to be
toenforced,
be enforced,
while
while the
the doctrine
doctrineof ofeconomic
economicduress
duresschallenges
challenges us us
to to
determine
determine which
whichre-negotiations
re-negotiations
we judge
judge to
to be
be unreasonable.
unreasonable.
Overall,
Overall, therefore,
therefore,thethedecision
decisionininWilliams
Williams v Roffey
v Roffey is tois to
be be
welcomed.
welcomed.Admittedly,
Admittedly,
it may
may substitute
substituteoneonesetsetofofproblems
problems forfor
another;
another; butbut thetheportents
portents
are are
reasonably
reasonably
encouraging.
encouraging. Provided
Providedthat
thatthethejudges
judgesdodonot
notgetget
side-tracked
side-tracked down
down
a conceptual
a conceptualcul-de-
cul-de-
sac in
in search
search of of'practical
'practicalbenefit'
benefit'- -thereby
thereby transforming
transforming thethe
old old
search
search
for for
'extra
'extra
detriment'
detriment' into
intoaanew
newsearch
searchforfor'extra
'extra
benefit'
benefit'
- there
- thereis aisreal
a real
opportunity
opportunityfor for
contract
contract
to be
be released
released from
fromthetheiron
ironcage
cageofof
benefit
benefitandand
detriment
detriment (together
(together
withwith
the the
restrictive
restrictive
idea
idea that
that the
the law
lawofofcontract
contractisispredicated
predicated upon
uponnon-relational
non-relational transactions).32
transactions).32
So released
So released
from
from the
the shackles
shacklesof
ofthe
thenineteenth
nineteenthcentury,
century,
thethe
courts
courts
willwill
be free
be free
to address
to address
the the
important
important
issues
issues of
of principle
principlepresented
presentedbybymarket
market transactions
transactions
in in
thethe
latelate
twentieth
twentieth
century.
century.

Formalities
Formalities Relating
Relatingto
toGifts
Gifts
Jonathan
Jonathan Hill*
Hill*

The
The disinclination
disinclinationof
ofthe
theEnglish
Englishcourts
courts
toto
give
give
legal
legal
effect
effect
to intended
to intended
gifts
gifts
which
which
do do
not
not comply
comply with
withthe
theprescribed
prescribedformalities
formalitieshas
has
recently
recently
been
been
illustrated
illustrated
by the
by the
decision
decision
of Mummery
Mummery JJin
inSen
SenvvHeadley.'
Headley.'Mr
MrHewett
Hewettand
and
Mrs
Mrs
SenSen
hadhad
been
been
close
close
friends
friends
for for
over
over thirty
thirty years,
years,and
andfrom
from1954
1954for
forabout
about
ten
ten
years
years
they
they
hadhad
lived
lived
together
together
as man
as man
and and
wife.
wife. Mr
Mr Hewett
Hewettbecame
becameseriously
seriouslyillill
towards
towardsthethe
end
endof of
1986.
1986.
MrsMrs
SenSen
looked
looked
afterafter
his his
house
house while
while he
he was
wasininhospital.
hospital.She
Shevisited
visited
himhimevery
everydayday
andand
brought
broughthimhim things
things
fromfrom
the
the house
house at
at his
hisrequest.
request.She
Sheeven
evenfedfed him
him- because
- becausehe he
would
would
notnot
taketake
foodfood
fromfrom
the the
nurses.
nurses. During
During his
hisillness
illnessMr
MrHewett
Hewett waswasentirely
entirely
dependent
dependenton on
MrsMrs
Sen:Sen:
his his
closest
closest
relative
relative
was a sister who lived in South Africa.
In a conversation on 4 December, Mrs Sen asked Mr Hewett what she should do with
his house if anything should happen to him. Mr Hewett replied: 'The house is yours,
Margaret. You have the keys. They are in your bag. The deeds are in the steel box.' Mr
Hewett died intestate on 7 December. A day or two after his death Mrs Sen went to the
house, and found the steel box, which contained the title deeds to the house. Mrs Sen
claimed to be entitled to have the house conveyed to her on the basis that there had been
a valid donatio mortis causa. (Mrs Sen was not entitled to apply to the court under the
family provision legislation under Mr Hewett's intestacy, since she was not being maintained
by him immediately before his death,2 and therefore her claim based on donatio mortis
causa was effectively the only possible means whereby she could receive any benefit from
Mr Hewett's estate.)
It is trite law that a donatio mortis causa must comply with the three requirements set
out by Farwell J in Re Craven's Estate3:

32 See the various writings of Ian Macneil; eg 'The Many Futures of Contract' (1974) 47 Southern California
Law Review 691, and 'Contracts: Adjustments of Long-Term Economic Relations under Classical, Neo-
Classical and Relational Contract Law' (1978) 72 Northwestern University Law Review 854. For a recent
examination of this issue, see Bell, 'The Effect of Changes in Circumstances on Long-Term Contracts,'
in Harris and Tallon (eds) Contract Law Today (Oxford: Oxford University Press, 1989).

*Lecturer in Law, University of Bristol.

1 [1990] 1 All ER 898.

2 Inheritance (Provision for Family and Dependents) Act 1975, s 1(1).
3 [1937] Ch 423, 426.

542

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