Berry v Berry [1929] 2 KB 316

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[1929] 2 K.B. 316

[DIVISIONAL COURT]

BERRY v. BERRY.

1929 June 5, 6.

SWIFT and ACTON JJ.

 

SWIFT J. In my opinion, the judge of the City of London Court was right in the determination at which he arrived and this appeal should be dismissed.

It is clear, as was said by Bosanquet J. in West v. Blakeway (3), that “no rule of law is better established than that a covenant cannot be varied or dispensed with, but by some contract of equal value; and this covenant, therefore, cannot be varied but by some instrument under seal.” But, although that was the rule of law, the Courts of Equity have always held themselves at liberty to allow the rescission or variation by a simple contract of a contract under seal by preventing the party who has agreed to the rescission or variation suing under the deed. In Nash v. Armstrong (2) it was held that a parol agreement not to enforce performance of a deed and to substitute other terms for some of its covenants was a good consideration for a promise to perform the substituted contract, even although the deed be not thereby released. In the course of the argument Willes J. said he would have thought “the agreement a good answer” by way of equitable plea. As my brother Acton has pointed out, Willes J. added (4): “The payment of the 70l. under the agreement would surely be ground for an unconditional perpetual injunction against proceeding upon the deed.”

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