Formalities Relating to Gifts
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb02836.x |
| Published date | 01 July 1990 |
| Date | 01 July 1990 |
| Author | Jonathan Hill |
The
Modern
Luw
Review
[Vol.
53
both an opportunity and a challenge. For,
by
weakening the consideration requirement,
Williams
v
Roffey
presents the opportunity for reasonable re-negotiations to be enforced,
while the doctrine of economic duress challenges us to determine which re-negotiations
we judge to be unreasonable.
Overall, therefore, the decision in
Williams
v
Roffey
is to be welcomed. Admittedly,
it may substitute one set of problems for another; but the portents are reasonably
encouraging. Provided that the judges do not get side-tracked down a conceptual cul-de-
sac in search of ‘practical benefit’
-
thereby transforming the old search for ‘extra
detriment’ into a new search for ‘extra benefit’
-
there is a real opportunity for contract
to be released from the iron cage
of
benefit and detriment (together with the restrictive
idea that the law of contract is predicated upon non-relational
transaction^).^^
So
released
from the shackles of the nineteenth century, the courts will be
free
to address the important
issues of principle presented by market transactions in the late twentieth century.
Formalities Relating to
Gifts
Jonathan
Hill”
The disinclination of the English courts to give legal effect to intended gifts which do
not comply with the prescribed formalities has recently been illustrated by the decision
of Mummery
J
in
Sen
v
HeadZey.]
Mr Hewett and Mrs Sen had been close friends for
over thirty years, and from
1954
for about ten years they had lived together as man and
wife. Mr Hewett became seriously ill towards the end of
1986.
Mrs Sen looked after his
house while he was in hospital. She visited him every day and brought him things from
the house at his request. She even fed him
-
because he would not take food from the
nurses. During
his
illness Mr Hewett was entirely dependent on Mrs Sen: his closest 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,* 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 Universiry 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)
Conrracr Law
Today (Oxford: Oxford University Press, 1989).
*Lecturer in Law, University of Bristol.
1
2
3 [1937] Ch 423, 426.
[1990]
1
All
ER
898.
Inheritance (Provision for Family and Dependents) Act 1975,
s
l(1).
542
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