Jones v Padavatton (1969)

Balfour v Balfour (1919) tells you that domestic arrangements between husband and wife are usually not contracts. Jones v Padavatton is the case that carries that idea beyond marriage, to parent and child, and shows how hard the line is to draw when one family member has given up a great deal on the strength of another's promise.

It is valuable in the exam for a second reason: the three judges agreed on the result but not on the route. Two found no contract at any stage; one (Salmon LJ) found a real contract in 1962 that had simply run its course. That split lets you show an examiner that the "presumption against legal intention" is a rebuttable presumption of fact, not a rule of law.

Mother and daughter came from Trinidad. In 1962 the daughter was living in a flat in Washington, D.C., employed in the Indian Embassy at a satisfactory salary with a pension, with a seven-year-old son. For some years the mother had been pressing her to give this up and read for the Bar in England, so that she could later practise in Trinidad.

The mother promised maintenance of 200 dollars a month if the daughter would go. The mother meant West Indian dollars (about £42 a month); the daughter thought U.S. dollars (about £70). The daughter went to England in November 1962, joined Lincoln's Inn, and accepted £42 a month without real protest. Nothing was written down, and nothing settled how long the payments were to last.

In 1964 the arrangement changed ("step two"). The mother bought a house, No. 181 Highbury Quadrant, London, for about £6,000, conveyed into her own name. The daughter was to live in part of it and let the rest to tenants, the rents to provide her maintenance in place of the £42. The daughter moved in in January 1965 and later married Mr Padavatton.

By 1967 the daughter had still not completed Part I of the Bar examinations. The mother had received nothing from the rents and no proper accounts. She gave notice to quit and sued for possession. The daughter counterclaimed about £1,655 she said she had spent on the house. The county court judge accepted the daughter's version, dismissed the claim for possession and gave judgment on the counterclaim. The mother appealed.

Danckwerts LJ put the two questions this way: "(1) Were the arrangements (such as they were) intended to produce legally binding agreements, or were they simply family arrangements depending for their fulfilment on good faith and trust, and not legally enforceable by legal proceedings ? (2) Were the arrangements made so obscure and uncertain that, though intended to be legally binding, a court could not enforce them ?"

The appeal was allowed unanimously. The mother was entitled to possession of the house. The reference of the counterclaim to the registrar was left to stand, and leave to appeal to the House of Lords was refused.

Danckwerts LJ — a family arrangement throughout

Families can make binding contracts if they so intend, but "there is possibly in family affairs a presumption against such an intention (which, of course, can be rebutted)". Balfour v Balfour was a husband-and-wife case, "but there is no doubt that the same principles apply to dealings between other relations, such as father and son and daughter and mother".

He concluded that "the present case is one of those family arrangements which depend on the good faith of the promises which are made and are not intended to be rigid, binding agreements." The house scheme was "not a completely fresh arrangement, but an adaptation of the mother's financial assistance to her daughter due to the situation which was found to exist in England. It was not a stiff contractual operation any more than the original arrangement."

Salmon LJ — a contract in 1962, but it had expired

Salmon LJ agreed with the result "by a different route". The test is objective: the court considers what the parties said and wrote in the light of all the surrounding circumstances. He accepted that between close relations there is a presumption against contractual intention, but stressed its nature: "This is not a presumption of law, but of fact". It can be rebutted.

On the "very special facts" — a woman of thirty-four giving up a pensioned post and a settled home in Washington at her mother's urging — it was rebutted: "I cannot think that either intended that if, after the daughter had been in London, say, for six months, the mother dishonoured her promise and left her daughter destitute, the daughter would have no legal redress."

The contract was not void for uncertainty. The currency point had caused no difficulty in practice, and on duration he saw "no difficulty in implying the usual term that it was to last for a reasonable time." A reasonable time could not exceed five years from November 1962, so by November 1968 the daughter had no further rights under it.

The 1964 house arrangement was different. It was for the daughter to prove a variation or new contract giving her a right to stay, and "In my view she totally failed to do so." She was a mere licensee whose licence the mother could end at any time.

Fenton Atkinson LJ — consideration is not enough

The daughter plainly gave consideration by giving up her work and home, "But the giving of consideration by the daughter cannot decide the question whether the parties intended to make a binding contract." He relied on Atkin LJ's passage in Balfour v Balfour that such arrangements "are not contracts because the parties did not intend that they should be attended by legal consequences".

He looked to the later conduct of the parties as the best guide to their intention at the time: the daughter accepted £42 without claiming the larger sum; the house scheme left every material matter open; and when the mother came to the house the daughter would not open the door, saying "a normal mother doesn't sue her daughter in court." He concluded: "I am satisfied that neither party at that time intended to enter into a legally binding contract, either then or later when the house was bought."

Arrangements between close family members — not only husband and wife but parent and child — are presumed not to be intended to create legal relations. The presumption is one of fact, not law, and may be rebutted by the surrounding circumstances; but the giving of consideration does not by itself rebut it. On these facts the majority (Danckwerts and Fenton Atkinson LJJ) held there was no contract at any stage; Salmon LJ held there was a 1962 contract lasting a reasonable time, which had ended, and that the house arrangement was never contractual. On either route the daughter had no right to remain in the house.

• Direct question: Agreements between family members are not contracts. Discuss with reference to intention to create legal relations. Start with Balfour v Balfour, then use Jones v Padavatton to show the presumption extends to parent and child, and that it is rebuttable (Salmon LJ).
• Problem question: a parent promises an allowance if a child gives up a job to study. Identify the presumption, then weigh the rebutting factors — the size of the sacrifice, confirmation through an agent, the certainty of the terms — against informality and conduct. Cite both routes in Jones v Padavatton.
• Point worth marks: consideration and intention are separate requirements. Fenton Atkinson LJ is the clearest authority that the first does not prove the second.