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BREACH OF PROMISE

When a man proposes marriage to the love of his life and she accepts the proposal and they become engaged they are said to have concluded a contract to marry in the future. Before the marriage is scheduled to take place one of the Parties has had a change of heart and breaks of the engagement. Does the aggrieved Party have a claim for damages against the Party who has broken off the marriage? And if such a claim does exist what damages can the aggrieved Party claim?

Our common law has, over the years, recognised the principle that the aggrieved Party has a claim for breach of promise. Traditionally this claim comprises of two parts as follows:-

  1. The delictual claim which the aggrieved Party would have under the action injuriarum  for contumelia (damages for the humiliation caused as a result of the break-up of the relationship): and:

 

  1. The contractual claim for the actual financial loss suffered by the aggrieved Party as a result of the break-up of the relationship of the Parties.

The position in regard to this consideration once again came before the Supreme Court of Appeal in the case of
 
 Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76

In this case Van Jaarsveld was engaged to Miss Bridges. One month prior to the scheduled marriage Van Jaarsveld sent his fiancée an sms in which he said that he did not wish to go through with the marriage as there were far too many factors militating against it being a success. It appears that Miss Bridges had three previous marriages and Van Jaarsveld’s choice of her as his potential wife did not find favour with his mother who thought that Miss Bridges had ulterior motives in wanting to be married to her son. Van Jaarsveld thus stated in his message that after giving the matter serious thought, it seemed to him that the marriage should not take place and in apologising for the inconvenience and hurt his actions were likely to cause he stated that it was more appropriate not to go through with the marriage as opposed to going through with it but then later being forced to divorce because its chances of lasting were less then favourable.

The unanimous judgment of the Court was written by Harms DP (with whom Nugent Van Heerden JJA and Majiet and Seriti AJJA concurred). At paragraph 3 of his Judgment the learned Deputy President of the Court outlined the approach he had decided to adopt in this case by stating:

“Courts have not only the right but also the duty to develop the common law, taking into account the interests of justice and at the same time to promote the spirit, purport and objects of the Bill of Rights.2 In this regard courts have regard to the prevailing mores and public policy considerations...”

Later in the same paragraph Harms DP stated

“.....I do believe that the time has arrived to recognise that engagements are outdated and do not recognise the mores of our time, and that public policy considerations require that our courts must reassess the law relating to breach of promise. In what follows I intend to give some guidance to courts faced with such claims without reaching any definite conclusion because this case is not affected by any possible development of the law and can be decided with reference to two factual issues, namely, in relation to iniuria, whether the breach was contumacious and, secondly, whether Bridges has suffered any actual loss as a result of the breach.”

It is noteworthy to observe that when referring to the Bill of Rights above, the Learned Deputy President of the Supreme Court of Appeal had in mind Section 39 (2) of our Constitution which reads as follows:

“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

In Paragraphs 4 to 8 of his written Judgment Harms DP outlined the principles of Law in respect of a claim of this nature as follows:

[4] A breach of promise may give rise to two distinct causes of action.6 The one is the actio iniuriarum. The ‘innocent’ party is entitled to sentimental damages if the repudiation was contumelious. This requires that the ‘guilty’ party, in putting an end to the engagement, acted wrongfully in the delictual sense and animo iniuriandi. It does not matter in this regard whether or not the repudiation was justified. What does matter is the manner in which the engagement was brought to an end. The fact that the feelings of the ‘innocent’ party were hurt or that she or he felt slighted or jilted is not enough. I shall revert to this issue.

[5] The second cause of action is for breach of contract. Two aspects arise for discussion. The first is that an engagement may be cancelled without financial consequences if there is a just cause for the cancellation. Just cause is usually defined as any event or condition or actions of the other party which would jeopardise a long and happy marriage and which can induce any right-minded member of society to rescind the engagement.7 The origin of this restricted meaning is to be found in Canon Law and Germanic Law influences at a time when churches controlled the lives of people, when a woman was deemed to be of a lower status than a man, and when a party to a promise to marry could be obliged to marry by an action for specific performance.

[6] The world has moved on and morals have changed. Divorce, which in earlier days was available in the event of adultery or desertion only, is now available in the event of an irretrievable breakdown of the marriage. Guilt is no longer an issue. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, irrespective of the ‘guilt’ of the latter. Unwillingness to marry is clear evidence of the irretrievable breakdown of the engagement. It appears illogical to attach more serious consequences to an engagement than to a marriage.

[7] The second aspect that has to be considered in the context of contractual damages is the justification for placing an engagement on a ‘rigid contractual footing’.8 It is difficult to justify the commercialisation of an engagement in view of the fact that a marriage does not give rise to a commercial or rigidly contractual relationship.

[8] I do not accept the proposition that parties, when promising to marry each other, contemplate that a breach of their engagement would have financial consequences as if they had in fact married. They assume that their marital regime will be determined by their wedding. An engagement is in my view more of an unenforcable pactum de contrahendo providing a spatium deliberandi – a time to get to know each other better and to decide whether or not to marry finally.”
The Learned Deputy President of the Supreme Court of Appeal after analysing the evidence presented to the Trial Court found that the claim for breach of promise can only lead to a claim for sentimental damages if the breach was wrongful in the delictual sense and that the test for establishing this is objective which requires the conduct complained of to be tested against the prevailing norms of Society. He found that the manner in which Van Jaarsveld notified Bridges of his intention not to go through with the marriage was not contumacious or insulting. Therefore the claim for delictual damages was denied.

It is perhaps noteworthy to mention that hardly one month after the engagement was broken off; Ms Bridges managed to find refuge in the arms of another although the real test to claim delictual damages amounted to the manner in which the engagement was broken off.

In so far as the contractual claim was concerned Bridges claim for loss of income could not be substantiated and her claim for actual financial loss failed to take into account certain sums of money in the form of deposits paid by Van Jaarsveld and if such payments were taken into account as they should have been, she had no claim for contractual damages.

Van Jaarsveld’s appeal succeeded and the award of the Trial Court was substituted for an Order of absolution from the instance and costs.

 
DATED AT JOHANNESBURG THIS 5TH JANUARY 2011.

 

.................................................................
VICKY BOVE AND LESLIE KOBRIN
BOVE ATTORNEYS
JOHANNESBURG

   

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