IHTM28220 - Investigating liabilities: necessaries

Although in general a person who contracts for the supply of goods or services is liable under the contract to make payment from his or her own property, there is a presumption in English law that if a man lives with his wife or mistress, the wife or mistress is entitled to pledge his credit for necessaries. This means that she contracts as agent for her husband, so that unless the presumption is rebutted (see below) deduction for any unpaid monies relating to those items cannot be taken against her estate.

The term "necessaries" means, broadly, goods suitable to the man's style of living, the purchase of which might reasonably be expected to be the responsibility of the wife or mistress.

In a dispute, though, it is for the trader to satisfy the Court that the goods concerned are within that meaning. This presumption can be rebutted, for example, if any of the following apply

• there was evidence to show that the wife entered into the contract as her own personal contract or that she led the contracting party into a belief that she did so, with the result that the credit was given to her and not to her husband
• the wife was already supplied with sufficient articles of that kind
• the other contracting party had been warned expressly by the husband not to supply goods on credit to his wife
• the husband had expressly forbidden the wife to pledge his credit, or
• there was a course of conduct such as habitual payment of the creditor by the wife or recoupment by her of the husband.

If you require further information on this topic, you might usefully refer to Halsbury's Laws of England, 4th edition, Vol 22, paragraph 1086 onwards or Cheshire & Fifoot's Law of Contract, 10th edition pp 430-1 and to the cases cited there.

In Scotland Gloag & Henderson 10th Edition, at p.865 may usefully be consulted.

The fact that the husband may have made himself directly responsible for the debt in question is not to be regarded as conclusive. If it can be established

• that the wife had ample separate estate to meet the debts, and
• that she had been in the habit of paying for such necessaries or of refunding to the husband the money spent by him

you may assume that the husband acted as agent for his wife. In such a case deduction may be taken against the estate of a married woman in the same way as if she had expressly contracted to charge her own estate and exonerate her husband.

In Scotland the legal presumption of the wife’s praepositura has now been abolished by the Law Reform (Husband and Wife) (Scotland) Act 1984 which came into force on 24 July 1984. A married woman is no longer as a matter of law to be presumed to have been placed by her husband in charge of his domestic affairs. A mandate may, however, be implied from circumstances or a husband may give his wife express authority to make contracts on his behalf, in which case he will be liable, on the ordinary principles of agency, on the contracts within the scope of the authority conferred.

Any case in which the point arises should be referred to TG for consideration.