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Key information

Court
Supreme Court of Victoria

Issues
Consideration (giving up freedom)

AustraliaDunton v Dunton

(1892) 18 VLR 114

 

Facts

The parties entered into a written agreement whereby Mr Dunton agreed to pay his former wife an allowance so long as she behaved ‘with sobriety, and in a respectable, orderly, and virtuous manner’ or committed an act whereby she or Mr Dunton could be subjected to ‘hate, contempt, or ridicule’.  The question arose as to whether this agreement was legally binding.  

Was there consideration for Mr Dunton’s promise to pay the allowance?

Plaintiff argued

A promise to behave respectably constitutes good consideration.

Defendant argued

The promise to behave respectably was merely a promise to do that which Mrs Dunton was already bound to do (ie, she was already required to behave respectably!) and was, therefore, not good consideration.

Held

Higinbotham CJ

The terms of the agreement did imply a promise by Mrs Dunton and this was good consideration.  Though promising not to do something which cannot lawfully be done is not good consideration, a promise not to do something which can be lawfully done is good consideration.

Here Mrs Dunton promised to give up a liberty she had to behave unrespectably.

‘[Mrs Dunton] was released by the decree for the dissolution of marriage from her conjugal obligation to the defendant to conduct herself with sobriety, and in a respectable, orderly, and virtuous manner …’

As a result 'her promise to surrender her liberty and to conduct herself in the manner desired by the defendant constituted … a good consideration.'

Williams J

Agreed with Lord Higinbotham

Hood J (dissenting)

Dissented, holding that the promise (if there was one) was too vague and uncertain to be enforced.

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