Ward v Byham

A promise to make weekly payments for a child's maintenance was supported by consideration where the recipient accepted and performed the conditions stipulated in the promisor's letter. Those conditions included ensuring that the child would be well looked after and happy, and allowing the child to decide whether to live with the recipient.

Denning LJ further considered that performing an existing legal duty may constitute good consideration when the performance confers the stipulated benefit on the promisor. That broader reasoning did not command the express agreement of the other members of the court.

The unmarried parents of an illegitimate child separated. The father initially placed the child with a neighbour and paid the neighbour £1 a week. After the mother asked to care for the child, the father wrote that she could have the child and receive up to £1 a week if she proved that the child would be well looked after and happy, and allowed the child to decide whether to live with her.

The mother took the child and fulfilled the arrangement. The father ceased paying after the mother married. She successfully sued for the weekly sum in the county court, and the father appealed on the ground that her care of the child supplied no consideration because she was already legally obliged to maintain it.

1. Disposition. The Court of Appeal unanimously dismissed the father's appeal with costs. Each Lord Justice concluded that the letter of 27 July 1954 disclosed good consideration for the father's promise.
2. The contractual conditions. Morris LJ held that the arrangement required more than the bare discharge of the mother's statutory duty to maintain the child. The father stipulated that the mother must prove that the child would be well looked after and happy, and must permit the child to decide whether she wished to live with her. The mother fulfilled those conditions. They therefore supplied ample consideration for the promise to pay £1 a week. Parker LJ reached the same conclusion and adopted the county court judge's judgment.
3. Denning LJ's reasoning. Denning LJ treated the letter as containing a promise to pay up to £1 a week so long as the mother looked after the child. He assumed that her care amounted only to performance of her existing legal duty under section 42 of the National Assistance Act 1948. Even on that assumption, performance was a benefit to the father because it secured the care for which he had stipulated. Denning LJ considered that the father could not retain that benefit while avoiding his promise on the ground that the mother already owed the duty.
4. Unilateral contract. Denning LJ characterised the arrangement as a unilateral contract: a promise of weekly payment in return for the act of caring for the child. Once the mother embarked upon that task, the contract became binding, and her entitlement continued while she looked after the child. This broader existing-duty and unilateral-contract analysis was not expressly adopted by the other members of the court.

• Court of Appeal: The father's appeal was dismissed unanimously with costs.
• County court: The judge held that the father's promise was supported by consideration and gave judgment for the mother. The citation is not stated in the judgment.