Gandy v Gandy (1885) 30 Ch. D 57
Contract law – Deed of separation – Covenant with trustees
Facts
As part of a deed of separation between husband and wife, the husband agreed to pay the trustees an annual sum of money for his wife and two eldest daughters to use. The husband also agreed to pay for the education of the two youngest daughters. The agreement also required the younger daughters live somewhere at his expense and on the basis that both the husband and wife had reasonable access to them. The trustees agreed to indemnify him against liability and that the wife did not bring proceedings for further payments. When one of the youngest daughters turned sixteen years of age, the husband refused to pay any maintenance. The daughter brought an action against the husband to enforce the deed of separation. The wife also claimed further maintenance payments on the basis that the husband had committed adultery and she had been given custody of the two younger children.
Issue
The primary issue for the court to consider was whether the daughter could enforce the deed of separation that had been previously agreed by her parents. A secondary issue to this was whether, having been given custody of the two younger children, whether the wife could claim for an increase in financial assistance from the father.
Decision/Outcome
On the construction of the deed, the daughter plaintiff was not in a position to claim under the agreement between husband and wife. However, the writ application to the court could be amended by adding the trustees, wife or elder daughters to include them in the claim. The wife joined the claim as co-plaintiff after the trustees rejected to do so. The court held that the wife could claim for increased maintenance payments, despite the original agreement between the parties which agreed she could not do so.
Updated 19 March 2026
This article concerns the 19th-century case of Gandy v Gandy (1885) 30 Ch D 57, which is primarily relevant as an illustration of the doctrine of privity of contract — specifically, that a third party (here, the daughter) could not enforce a covenant made between her parents and their trustees. This principle was subsequently codified and partially reformed by the Contracts (Rights of Third Parties) Act 1999, which is not mentioned in the article. Under that Act, a third party may now enforce a contractual term if the contract expressly provides that they may do so, or if the term purports to confer a benefit on them and it does not appear that the parties did not intend it to be enforceable by the third party. Had the 1999 Act applied to the facts in Gandy v Gandy, the outcome may well have been different, depending on the construction of the deed.
Readers should therefore treat this article as an account of the historical common law position on privity rather than a complete statement of current law. The case itself remains good authority for understanding the pre-1999 common law, but students should be aware that the 1999 Act now significantly qualifies that position in many situations.
