UK: But You Promised!

Contracts Law, Commercial Disputes
Last Updated: 16 December 2003
Article by Timothy Parsons

In a recent House of Lords’ decision, Actionstrength Ltd v International Glass Engineering SpA and others1, the application of a 300 year old statute was approached on the basis that Parliament may have intended to cause injustice by allowing people to break promises which had been relied upon.

The decision related to the enforceability of a purported guarantee given orally. The appellant, Actionstrength was a labour-only subcontractor retained by a main contractor, Inglen, which in turn was retained by the respondent, St-Gobain to construct a plate glass factory in East Yorkshire. The matter proceeded on the assumption that a guarantee had been given to Actionstrength by St-Gobain in respect of a debt owed by Inglen to Actionstrength of about £197,000. In short, Actionstrength had threatened to withdraw its labour from the site unless the debt was paid. To avoid this, St-Gobain allegedly promised that if Inglen could not be persuaded to pay Actionstrength, St- Gobain would do so out of monies withheld from what was due to Inglen under the main contract. In reliance, Actionstrength continued providing labour until the debt had reached approximately £1.3 million. Actionstrength was still unable to obtain payment from Inglen and at this point, the labour was withdrawn and Actionstrength sued St-Gobain on the basis of the alleged guarantee of payment.

In response, St-Gobain argued that even if a promise had been given (which was denied), it was unenforceable by virtue of s.4 of the Statute of Frauds 1677 which states that no court action shall be brought ‘…to charge the defendant upon any special promise to answer for the debt…of another person…unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith…’.

Actionstrength’s problem of course was that the guarantee upon which it relied had been made only orally and thereby fell foul of the Statute. Nevertheless, it argued that it would be unconscionable for St-Gobain to renege on its promise. However, the House of Lords disagreed and held that the alleged oral guarantee was not enforceable. The Court decided that Actionstrength could not rely on an estoppel (i.e. could not prevent St-Gobain from denying the truth of the assertion allegedly made to Actionstrength) since to admit an estoppel on the grounds that Actionstrength had acted to its detriment in reliance on the oral promise would effectively amount to a repeal of the Statute of Frauds (the court noted that in almost any case, the recipient of the oral promise could be said to have acted to their detriment). The possibility that an estoppel may be relied upon in other circumstances was left open, but it is difficult to see just what these circumstances might be.

While it was acknowledged that the 17th century mischief that the Statute was intended to redress (i.e. to avoid the calling of perjured evidence to prove spurious agreements said to have been made orally) was perhaps outweighed by the mischief to which it can give rise in cases such as this, it was for Parliament, not the courts, to repeal the Statute.2

Nevertheless, the Court did acknowledge that the reasons for retaining the rule could have little bearing on cases where the facts were such as those assumed in this instance. For example, (i) it did not involve a bargain struck between inexperienced people; (ii) St-Gobain had a clear incentive to keep the Actionstrength workforce on site (and did benefit in this respect); (iii) contract law does not ordinarily require writing as a condition of enforceability; and (iv) it was doubtful whether those involved appreciated that the agreement made was in law a guarantee.

Ultimately, Lord Hoffmann noted that the purpose of the Statute was to avoid the need to decide which side was telling the truth. Any potential injustice in this and other cases was outweighed by the need to protect people from being held liable on the basis of oral utterances which were illconsidered, ambiguous or completely fictitious. In this context, he said that no assumption can be made that Parliament did not intend to cause injustice by allowing people to break promises which had been relied upon3.

In short, unless evidenced and signed in writing, an offer, even in good faith, is an offer of nothing. Parties who have concerns about the solvency of employers (developers/main contractors) must ensure that any promises or guarantees are recorded and signed by the person giving the guarantee if they are to be relied upon.

1 [2003] 2 WLR 1060
2 Lord Bingham comments at p.1064, para 7
3 p1066, paras 19-20

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions