053-NLR-NLR-V-36-LALCHAND-v.-SARAVANAMUTTU-et-al.pdf
273
GARVIN S.P.J.—Laichand1 v. jSaravanamuttu.
1934Present :■ Gaisin fe.PJ.
LALCHAND v. SARAVANAMUTTU et al.
45 C. R. Colombo, 83,828.
Husband and wife—Capacity of wife to bind husband by contract—Mattersconnected with household management—Right incident to marriagestatus—Roman-Dutch law.
In the Roman-Dutch law a wife may enter into a contract bindingupon herself and her husband in respect of matters connected with themanagement of the household, such as the purchase of food and clothing.
It is a right to contract which is an incident of the status of marriageand which does not depend on a question of agency as under the Englishlaw.
^^PPEAL from a judgment of the Commissioner of Requests, Colombo.
Weerasooria (with him Batuwantudawe), for defendant, appellant.
Garvin (with him S. Alles), for plaintiff, respondent.
t
August 30, 1934. Garvin S.P.J.—
The defendants who are husband and wife were sued by the plaintiff torecover a sum of Rs. 85.05 being the balance due in respect of goods soldand delivered. The account particulars filed with the plaint show thatthe plaintiff opened this account in the name of Mrs. P. Saravanamuttu,the second defendant, and the goods which were supplied to her ather request consisted of sarees and other dress material. The documentP 1 which relates to this account indicates that it was opened in December,1930. On the credit side there is shown various cash payments, leavingthe balance unpaid in respect of which this action was brought. Theperiod covered by these dealings was approximately nine months. Theonly person connected with the plaintiff’s business called to give evidencewas the ledger-keeper and the only facts additional to those enumeratedabove to which he speaks are that the cash payments were made by thesecond defendant and that the monthly bills tendered were addressed tothe second defendant. The sole ground upon which it is sought to makethe first defendant liable is that he is the husband of the second defendant.
The second defendant was also called as a witness for the plaintiff.She states that she and her husband ceased to live together about August,1932. These articles were all purchased by her prior to that date. Shesays that the monthly bills received by her were brought to the notice ofher husband. She does not however say that her husband approved ofher action or that he did anything from which a ratification can be inferred.This is denied by the first defendant. The learned Commissioner ofRequests has not pronounced upon this conflict of testimony, but I gravelydoubt whether these bills or any of them were brought to the notice ofher husband. In consequence of what her husband regarded as herextravagance he had as far back as the year 1930 notified various firms36/21
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GARVIN S.P.J.—Lalchand v. Saravanamuttu.
with whom she had dealings not to give her credit, and his position is thatthereafter having made what he considered an adequate allowance to herfor the maintenance of the establishment he bought everything beyondthose needs himself. There is no question, therefore, here of anysubsequent ratification of the transactions in respect of which this claimis made. It is to be noted that the plaintiff does not suggest that the firstdefendant himself, did anything, which would justify the inference thathe held her out as having authority to pledge his credit. It has not evenbeen said that he was aware that the two defendants were living togetheras husband and wife. The account was opened in her name; paymentswere made by her in cash; there is in short nothing to show that theplaintiff ever gave his mind to the question of the liability of the husbandor the right of the second defendant to pledge her husband’s credit. Whenshe failed to pay the balance he resorted to the husband apparently uponthe sole ground that he was her husband.
The English law in regard to the principles relating to the liability ofthe husband for a debt of this character incurred by a wife has been laiddown in the case of Debenham v. Mellon'.
The Lord Chancellor (Lord Selborne) stated the point for determinationas follows :—"Namely, that the question whether a wife has authority topledge her husband’s credit, is to be treated as one of fact, upon thecircumstances of each particular case, whatever may be the presumptionarising from any particular state of circumstances ”. His Lordshiprejects the contention that “ the mere fact of marriage implies a mandateby law, making a wife the agent in law of her husband, to bind him, andto pledge his credit by what otherwise would have been her own contract,if she had been a femme sole He then proceeds to deal with thequestion whether the law implies a mandate to the wife from the fact notof marriage but of cohabitation, and says : “ Cohabitation is not (likemarriage) a status, or a new contract; it is a general expression for -acertain condition of facts. If, therefore, the law did imply any suchmandate from cohabitation, it must be as an implication of fact, andnot as a conclusion of law Then dealing with the submission thatcohabitation between husband and wife does carry with it some pre-sumption, some prima facie evidence, of an authority to do those things,which, in such ordinary circumstances of cohabitation, it is usual for awife to do, which it was suggested amounted to “ apparent authority ” or“ ostensible authority ”, His Lordship proceeded as follows : “ I am not atall sure that Mr. Benjamin’s words may not be very good words, for thatordinary state of circumstances, in the case of cohabitation betweenhusband and wife, out of which the ordinary presumption arises; becausein that state of circumstances, the husband may truly be said to do acts,or habitually to consent to acts, which hold the wife out as his agent forcertain purposes. Then, the word ‘ apparent ’ or the word ‘ ostensible ’becomes appropriate. But where there has been nothing done, nothingconsented to, by the husband, to justify the proposition that he has everheld out the wife as his agent, I apprehend that the question whether, as amatter of fact he has given the wife authority, must be examined upon thewhole circumstances of the case ”.
* L. K. G A, C. SI.
GARVIN S.P.J.— Jalchand v. Saravanamuttu.
275
Lord Blackburn, in the course ot his judgment, agrees and adds, ** Ithink that when husband and wife are living together, it is open to thehusband to prove, if he can, the fact that the authority does not exist, itbeing a question for the jury whether a bona fide authority did or did notexist He also stated earlier in his judgment, “ I think that if thehusband and wife are living together, that is a presumption of fact fromwhich the jury may infer that the husband really did give his wife suchauthority. But even then, I do not think the authority would arise, solong as he supplied her with the means of procuring the articles otherwise
It would seem, therefore, that under the law of England, the liabilityof the husband would depend upon the question'whether or not he hadgiven his wife the authority to make the purchases it being a question ineach case whether the facts and circumstances prove or give rise to apresumption of agency. If, therefore, this case had to be determined inaccordance with the provisions of the English law, it would be verydoubtful whether in the circumstances of this case the plaintiff couldrecover.
But it seems to me that the question must be determined with referenceto the Roman-Dutch law inasmuch as the question relates to the con-tractual capacity of a wife. The broad rule of the Roman-Dutch lawwould seem to be that wife cannot contract so as to bind herself or herhusband to a third party without the consent of her husband. To thisrule there are certain exceptions, and one of them is that a wife mayvalidly contract and incur debts in matters connected with the house-keeping. Not only may she contract in such a case, but she may therebybind herself and her husband. “ The contracts of the wife in the house-hold management bind herself and her husband, as though establishedby the consent of the husband, who tacitly relinquishes the householdaffairs and entrusts them to his wife; since the husband is for the mostpart occupied with other things, and it would be neither honourable norconvenient to saddle him with those little daily duties. Unless at thehusband’s request, the care of the household affairs and the liberty ofmanaging them have been publicly denied the wife, for good reasons bythe authority of a Magistrate ”. (Voet, bk. XXIII. tit. 2, s. 46.) Grotius(bk. I, ch. 5, s. 23) says “ .- … women may only transact business
connected with the household and may to that extent bind themselvesand their husbands ; nor can the husband prevent this unless he interdictsthe wife judicially from the management, and give public notice of thesame ”. it would seem from these passages that the management ofthe household is not merely the duty, but the right of the wife, and thatshe can only be divested of this right by judicial interdict, and that forpurposes connected with the management of the household such as thepurchase of food and clothing, she has in her capacity of wife the right tomake contracts binding on the husband. The position of a wife, therefore,is different to that which it is under the English law, where even inrespect of such contracts the liability of the husband depends upon theauthority given her by the husband. It is not under the Roman-Dutchlaw a question of agency but rather a question of a right to contract whichis an incident of the status of marriage. The validity of such contracts,
276
De Soyza v. Appurala.
of course, depends upon the circumstances. As Voet says in the sectionearlier referred to, “ Much must be left to the discretion of the Judge indeciding whether and how far the contract of a wife for householdstuff, such as food and clothing, ought to be upheld, or whether she hasexceeded what was right. He must take into consideration not onlythe usage of the locality, but also the position of the husband, his wealth,his habits, and the frequent acknowledgment in the past of similarliability In a case of which a note is to be found in Bisset and Smith’sDigest of South African Case Law, vol. II, p. 1330, the full report of whichis not available, it was held by the majority of the Court that the rightof the wife to pledge her husband’s credit for necessaries was not basedon agency, but was an incident which flowed from the marriage. Thisview of the law would seem to be in accord with the passages in Voet andGrotius to which attention has been drawn.
A wife, therefore, and especially a wife who is living with her husband,would appear to be entitled under the law to make contracts in connectionwith the household, and may to that extent bind herself and her husband.The procedure *of obtaining an interdict from a Magistrate with a viewto determining the right of a wife may be taken to be obsolete, andpresumably in these days adequate public notice will be held to besufficient.
Now the learned Commissioner of Requests has found that havingregard to the station in life of this husband and wife, and the natureand quantity of the goods supplied to her by the plaintiff, he couldnot say that she has exceeded her right, and I cannot undertake to saythat he was wrong. His judgment must therefore be affirmed.
The appeal is dismissed with costs.
Appeal dismissed.