Regent v Millett

What happened?

A contract for the sale of land was not supported by the writing the statute required. The acts relied on as part performance were the purchasers' entry into possession, repairs they carried out, later renovations and additions, and their payment of the mortgage instalments.

The appellants argued two things: that the acts were not unequivocally referable to some such contract as the one alleged, and that a narrower test applied, under which nothing short of performance compelling the inference of a contract would do.

What did the Court decide?

The contract was enforceable, and the narrower test was rejected. The Earl of Selborne LC's formulation in Maddison v Alderson "has been consistently accepted as a correct statement of the law", and the acts need be referable only to a contract of the general nature of the one alleged rather than to that contract itself ([8]).

The holding on the facts is narrower than it is usually reported. "In the present case the giving and taking of possession by itself was sufficient part performance of the contract and it is therefore unnecessary to consider whether the other acts relied upon would also, either alone or together, amount to part performance" ([11]). The change of possession has been described as "the act of part performance par excellence"; the circumstances in which it was given here indicated contract, and "[t]he taking of possession was pursuant to the contract".

The Court also rejected the argument that the acts must have been required by the contract. The contract did not oblige the purchasers to take possession, "but if it were necessary that the acts of part performance should have been done in compliance with a requirement of the contract, the utility of the equitable doctrine would be reduced to vanishing point" ([11]).

Why does this case matter?

Because of what the Court declined to decide, which is where students most often go wrong. The judgment recites several acts, and having disposed of the case on one it expressly left open whether the others "either alone or together" would have sufficed ([11]). An answer that treats every act mentioned in a judgment as judicially endorsed part performance is reading approval into silence. That habit matters in this area, because the reported cases are full of lists of conduct that were never separately assessed.

The practical consequence is for how you plead. Identify the single act you say is unequivocally referable to a contract of the kind alleged and argue that one properly, rather than listing everything the parties did and hoping the court sorts it out — because on this authority a court that finds one sufficient act need not reach the rest.

Exam and application relevance

Lead with the strongest act. Change of possession is "the act of part performance par excellence" and will usually be it; payment of money is the weakest candidate, because money is referable to many arrangements. That is not to say acts cannot be relied on together — Regent did not decide that they cannot, and the earlier authorities contemplate possession coupled with expenditure on improvements — but an argument that leads with the strongest act does not depend on the point.

Then establish the connection. Show the circumstances in which the act was done indicate a contract of the general nature alleged, and deal with the obvious alternative explanations — a licence, a family arrangement, an existing tenancy. The requirement is unequivocal referability, and nothing in Regent softens it; the case rejects a narrower formulation, not the requirement itself.

Check your understanding

Your client paid a deposit and nothing else. Why is that the hardest act to run, and what would you look for to support it?