Abstract

Breach of promise by a betrothed is not met with the same sanctions as breach of contract. The disappointed previously engaged party cannot approach the court for an order against the other party for specific performance. The erstwhile future spouse cannot be compelled to enter into the envisaged marriage relationship notwithstanding the doubt that surfaced about the everlasting joyous nature of this union. For the same reason, no claim for positive interest as damages will be honoured by a court. The deserted betrothed cannot claim half of the estate of the other party because she was under the impression that the marriage would have been in community of property. The unavailability of these categories of remedies indicates that the foundation of an engagement agreement should not be seen as a contract between the parties to enter into a legal relationship which will entitle them to reciprocal claims for performance. It must rather be classified as a factual relationship between two parties that is recognised in law and therefore carries consequences. A betrothed cannot simultaneously be engaged to more than one prospective future spouse in a legal system that only recognises a monogamous marriage.

The unsavoury conduct of the guilty party who breached the promise to marry on the proverbial steps of the church, is, however, often the cause of damage and hardship for the innocent party and may also cause prejudice to her family when they have indebted themselves for the prospective marriage. The disappointed previous fiancée may have incurred significant costs for the bridal lay-out, the wedding feast and the intended honeymoon, but it may also include the loss of a previous job opportunity or the burdening of the claimant with the cost of a new dwelling that would not otherwise have been encountered.

Common law recognised the need to reimburse the innocent party for such losses and also for the personal injury suffered if the breach occurred shortly before the marriage was supposed to be concluded or the conduct of the guilty party was especially harsh and impolite. Harbouring bad manners comes at a cost.

In this contribution the historical development of the applicable claims is discussed by way of comparison with other legal systems in order to define the underlying foundation of the claims as recognised in South African law. In principle, claims founded on the actio legis Aquiliae as well as the actio iniuriarum should be available, provided the various requirements for the remedy can be met.

It is questioned whether there is any truth in the premise that the continued recognition of such a delictual claim will endanger the value of marriage as a binding institution in modern society and that this excuse justifies the demise of the sanctions against such a delict in some modern societies. The well-known proverb ubi ius ibi remedium also indicates that as long as the delictual conduct of the unreliable suitor is recognised as unacceptable conduct, private law should provide a suitable remedy to the injured subject. It is presumed that parties who decided mutually to become betrothed represent to each other and to third parties that they intend to enter into marriage as a lifelong relationship and that all concerned may act according to this representation of their mutual intent. Should any of the parties experience a serious change of heart and repudiate the agreement, the other may claim for any damage suffered as a result of the breach with the actio legis Aquiliae. In addition, the contumely conduct entitles the aggrieved party to claim solatium for the injury to her personality rights. Although the claims founded in the breach of promise are often referred to as contractual claims, the case law displays many examples where the claimant for the wasted damages caused by the delictual behaviour happened to be the parents or guardian of the party left in the lurch, notwithstanding the fact that the defendant did not enter into a contract with them as the future in-laws. This points to the fact that the remedy is a delictual and not a contractual remedy and founded in the breach of trust.