Shadwell v Shadwell [1860] EWHC CP J88 is an English contract law case, which held that it would be a valid consideration for the court to enforce a contract if a pre-existing duty was performed, so long as it was for a third party.

Shadwell v Shadwell
CourtCourt of Common Pleas
Full case nameLANCELOT SHADWELL v CAYLEY SHADWELL AND ANOTHER, Executor and Executrix of Charles Shadwell, Deceased.
Citation(s)[1860] EWHC CP J88, (1860) 9 CB (NS) 159
Court membership
Judge(s) sittingErle CJ, Byles J, Keating J
Consideration, pre-existing duty, third party

Facts edit

Mr Shadwell was engaged to marry Ellen Nicholl (this is a binding contract). His Uncle Charles promised £150 a year in a letter after the marriage. He wrote,

11 August 1838. Gray’s Inn.

My dear L,

I am glad to hear of your intended marriage with Ellen Nicholl, and, as I promised to assist you at starting, I am happy to tell you that I will pay to you 150l yearly during my life time and until your annual income from your profession of a chancery barrister shall amount to 600 guineas, of which your own admission will be the only evidence that I shall receive or require.

Your ever affectionate uncle, Charles Shadwell.

Sadly, Uncle Charles died. Mr Shadwell alleged that his Uncle had not paid in full before the death and claimed the outstanding money from his Uncle's estate. The estate refused to pay on the ground that Mr Shadwell had given no consideration for the promise to pay the £150 pa.

Judgment edit

The Court of Common Pleas held that there was good consideration for the promise by the nephew marrying Ellen Nicholl, despite the fact that the marriage had already happened when the promise was made. There was good consideration in performing a pre-existing contract, if it was with a third party.

Erle CJ said,

Sir William Erle

Now, do these facts shew that the promise was in consideration either of a loss to be sustained by the plaintiff or a benefit to be derived from the plaintiff to the uncle, at his, the uncle's, request? My answer is in the affirmative. First, do these facts shew a loss sustained by the plaintiff at his uncle's request? When I answer this in the affirmative, I am aware that a man's marriage with the woman of his choice is in one sense a boon, and in that sense the reverse of a loss: yet, as between the plaintiff and the party promising to supply an income to support the marriage, it may well be also a loss. The plaintiff may have made a most material change in his position, and induced the object of his affection to do the same, and may have incurred pecuniary liabilities resulting in embarrassments which would be in every sense a loss if the income which had been promised should be withheld; and, if the promise was made in order to induce the parties to marry, the promise so made would be in legal effect a request to marry.

Secondly, do these facts shew a benefit derived from the plaintiff to the uncle, at his request? In answering again in the affirmative, I am at liberty to consider the relation in which the parties stood and the interest in the settlement of his nephew which the uncle declares. The marriage primarily affects the parties thereto; but in "a secondary degree it may be an object of interest to a near relative, and in that sense "a benefit to him. This benefit is also derived from the plaintiff at the uncle's request. If the promise of the annuity was intended as an inducement to the marriage, and the averment that the plaintiff, relying on the promise, married, is an averment that the promise was one inducement to the marriage, this is the consideration averred in the declaration; and it appears to me to be expressed in the letter, construed with the surrounding circumstances.

No case shewing a strong analogy to the present was cited: but the importance of enforcing promises which have been made to induce parties to marry has been often recognized; and the cases cited, of Montefiori v Montefiori, 1 W. Bl. 363, and Bold v Hutchinson, 20 Beavan, 250, are examples. I do not feel it necessary to advert to the numerous authorities referred to in the learned arguments addressed to us, because the decision turns upon the question of fact, whether the consideration for the promise is proved as pleaded. I think it is; and therefore my judgment on the first demurrer is for the plaintiff.

Byles J dissented. In particular he disagreed on the factual question that the marriage was at the Uncle's request.

Marriage of the plaintiff at the testator's express request would be no doubt an ample consideration. But marriage of the plaintiff without the testator's request is no consideration to the testator. It is true that marriage is or may be a detriment to the plaintiff: but detriment to the plaintiff is not enough, unless it either be a benefit to the testator, or be treated by the testator as such by having been suffered at his request. Suppose a defendant to promise a plaintiff: 'I will give you 500l. if you break your leg," would that detriment to the plaintiff, should it happen, be any consideration? If it be said that such an accident is an involuntary mischief, would it have been a binding promise if, the testator had said: "I will give you 100l. a year while you continue in your present chambers?" I conceive that the promise would not be binding, for want of a previous request by the testator.

Now, the testator in the case before the court derived, so far as appears, no personal benefit from the marriage. The question, therefore, is still further narrowed to this point: Was the marriage at the testator's request? Express request there was none. Can any request be implied? The only words from which it can be contended that it is to be implied, are the words "I am glad to hear of your intended marriage with Ellen Nicholl." But it appears from the fourth plea that the marriage had already been agreed on, and that the testator knew it. These words, therefore, seem to me to import no more than the satisfaction of the testator at the engagement, an accomplished fact. No request can, as it seems to me, be inferred from them. And, further, how does it appear that the testator's implied request, if it could be implied, or his promise, if that promise alone would suffice, or both together, were intended to cause the, marriage or did cause it, so that the marriage can be said to have taken place at the testator's request? Or, in other words, in consequence of that request?

It seems to me not only that this does not appear, but that the contrary appears; for, the plaintiff before the letter had already bound himself to marry, by placing himself not only under a moral but under a legal objection to marry; and the testator knew it. The well-known cases which have been cited at the bar in support of the position that a promise based on the consideration of doing that which a man is already bound to do is invalid, apply in this case. And it is not necessary, in order to invalidate the consideration, that the plaintiff's prior obligation to afford that consideration should have been an obligation to the defendant. It may have been an obligation to a third person: see Herring v Darell, 8 Dowi. P. C. 604; Atkinson v Settree, Willes, 482. The reason why the doing what a man is already bound to do is no consideration, is, not only because such a consideration is in judgment of law of no value, but because a man can hardly be allowed to say that the prior legal obligation was not his determining motive. But, whether he can be allowed to say so or not, the plaintiff does not say so here. He does, indeed, make an attempt to meet this difficulty by alleging in the replication to the fourth plea that he married relying on the testator's promise: but he shrinks from alleging, that, though he had promised to marry before the testator's promise to him, nevertheless he would have broken his engagement, and would not have married without the testator's promise. A man may rely on encouragements to the performance of his duty, who yet is prepared to do his duty without those encouragements. At the utmost the allegation that he relied on the testator's promise seems to me to import no more than that he believed the testator would be as good as his word.

It appears to me, for these reasons, that this letter is no more than a letter of kindness, creating no legal obligation.

Keating J agreed with Erle CJ.

See also edit

Notes edit

“The marriage affects the parties there to, but in the second degree it may be an object of interest with a near relative, and in that sense a benefit to him, this benefit is also derived from the plaintiff at the uncle’s request if the promise of the annuity was intended as an inducement to marriage and the averment that the plaintiff relying on the promise, marriage is an agreement that the promise was an inducement to the marriage. This is a consideration averred in the declaration. and it appears to me to be expressed in the letter construed with the surrounding circumstances.”

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