Chapter 4 The Engagement PDF

FACULTY OF LAW Chapter 4 THE ENGAGEMENT Private Law Department JLVV102/1X2/12X/JLV111 1. Common Law & Contents of an Engagement Engagements, for the purposes of civil marriages, are governed by the common law (CL). Common Law Definition: Legally binding agreement/contract between a man & w...

FACULTY OF LAW Chapter 4 THE ENGAGEMENT Private Law Department JLVV102/1X2/12X/JLV111 1. Common Law & Contents of an Engagement Engagements, for the purposes of civil marriages, are governed by the common law (CL). Common Law Definition: Legally binding agreement/contract between a man & woman, (who are competent to marry) to marry each other on a specific or some undetermined future date, but within a reasonable period. Definition should be extended to include “any two persons”. Implied agreement that the parties will not become intimately involved with other people. In addition, the parties will not conduct themselves in a manner that will threaten the prospect of a happy future marriage. Valid engagement is not a prerequisite for the conclusion of a valid marriage. Engagement is concluded by an offer and acceptance. Parties do not have to be in each other’s presence. Engagement can be concluded by a representative on behalf of the parties with their consent. No formalities required. Engagement can be concluded: 1. Orally 2. In writing No public announcement required. Engagement is not enforceable. Cannot force either party to carry out the promise to marry. Socially unwise to force parties into a marriage they do not wish to enter into. Can only lead to unhappiness, conflict, wasted effort. However, an engagement is a juristic act with legal consequences. Breach of contract of engagement is a ground for an action for damages. 2. Requirements for a valid engagement 2.1 Consent (agreement) As an engagement is a contract, it is based on consent. Material mistake and misrepresentation exclude consent. Therefore, material mistake renders the engagement VOID. Misrepresentation, duress and undue influence render the engagement VOIDABLE. 2.1 Consent (agreement) (a) Mistake An absence of agreement on material aspects of the engagement excludes consent. 1. Error in personae (mistaken identity): woman thinks she is dealing with John but she is actually dealing with Peter. 2. Error in negotio (mistake wrt the nature of the juristic act): woman considers the promise as a joke. Material mistake results in the engagement being void. Neither party can claim damages. (b) Misrepresentation Occurs when one of parties to the contract makes a false representation to the other concerning certain facts, which had the other known the truth, would have resulted in the contract not being concluded at all or on different terms. Material misrepresentation results in the engagement being voidable at the discretion of the misled party. Misrepresentation = material if it is of such a nature as to seriously jeopardize any possibility of achieving a happy and harmonious marriage. Eg: false representations wrt sterility, impotency, mental illness and incurable disease is clearly material misrepresentation, as is a misrepresentation regarding sexual promiscuity. Information concerning such qualities should be revealed. In the absence of fraudulent concealment, the fact that either the man or the woman is no longer a virgin does not entitle the other party to repudiate the engagement. Misrepresentation consist of: 1. Positive action of making a false statement; or 2. Failure to remove a misconception when the person responsible for the misrepresentation is aware of its existence; 3. Not disclosing certain facts in circumstances where there is a duty to speak out. (misrepresentation by non-disclosure) See: Schnaar v Jansen 1924 NPD 218: Court held that failure to disclose details about family members with questionable pastimes and professions was not grounds for setting aside the engagement, it does not amount to material misrepresentation. A material misrepresentation constitutes a ground for setting the engagement aside regardless of whether or not it was made INNOCENTLY OR INTENTIONALLY. See: Thelemann v Von Geyso 1957 3 SA 39 (W). 2.2 Capacity to conclude an engagement Both parties must have the necessary capacity to act. The ff persons cannot enter into a valid engagement: 1. Persons that are too closely related; 2. Persons that are still married to other people; 3. Mentally ill persons; 4. Minor who does not have the required consent. Girls below the ages of 12 years and boys below the age of 14 years may not get married. Girls over the age of 12 years and boys over the age of 14 years must obtain parental permission. Ratification is also sufficient. Both parents’ consent is required unless the court orders otherwise or sole guardianship has been granted to one of the parents. If only one parent is alive, that parent’s consent is required. If neither parent is alive, the legal guardians consent must be obtained. Furthermore, girls between 12 and 15 years & boys between 14 and 18 years also require the consent of the Minister of Home Affairs. Therefore, the engagement will not be binding on the minor until the necessary ministerial consent is obtained. Question: whether minor has to obtain permission to get married if parents’ have already agreed to the engagement. Courts have twice ruled that parents may withdraw their consent after the engagement but before the marriage (Schoeman v Rafferty 1918 CPD 485; Sipondo v Nongauza 1927 EDL 255). Where the parents withdraw their consent before the marriage, the engagement is automatically terminated. Neither party has a claim for breach of promise. An emancipated minor also requires parental consent. No parental consent required by minors who has already been married Parents cannot conclude an engagement on behalf of their minor child without his consent. 2.3 Lawfulness Both parties must be unmarried. Promise by a married person to marry after obtaining a divorce or after his/her spouse’s death = VOID as it is contrary to public policy. Case law: Friedman v Harris 1928 CPD 43: A promise by a married person to marry after obtaining a divorce or after his/her spouse’s death is void as it is against public policy. 2.4 Possibility of Performance Parties must be in a position to marry each other. They must not be: 1. Related with in the prohibited degrees of relationship; 2. Under the age of puberty.  3. Content and consequences of the engagement Once a date for marriage is determined, a reciprocal duty to marry on that date exists. Date can be changed by mutual agreement. If one party refuses to marry on the agreed date without just cause, such party commits breach of promise (contract) to marry. No date sets, parties can agree later after the engagement on a date. Understood marriage will take place within a reasonable time. Continued refusal by one party to set a date within a reasonable time constitutes breach of promise. Engagement does not give the parties the right to claim physical intimacy or sexual intercourse. Engagement can be concluded subject to certain conditions, for example: if the man earns a certain income, or if the other party acquires citizenship. An impossible condition does not render an engagement void. It is merely held to be pro non scripto (as if it had never been written). The same applies to an unlawful condition for example, that the engaged couple must have sexual relations or live together. The engagement is only VOID if the condition is in direct conflict with the very nature of marriage, for example, if the woman is required to prostitute herself. Engagement requires the couple to be faithful to each other. This is an implied agreement between the engaged parties. Unfaithfulness constitutes breach of promise. 4. Termination of the engagement 4.1 Grounds for Termination Engagement is terminated by: 1. Marriage itself 2. Death of either party 3. Mutual agreement 4. Withdrawal of parental consent with regard to minors 5. Unilateral and justified termination based on sound reasons (justa causa) 6. Breach of promise  4.1.1 Definition of JUSTA CAUSA: Fact or occurrence which comes about after the engagement has been entered into and which, according to human experience, seriously jeopardise the chances of a happy and lasting marriage. Test applied = OBJECTIVE Examples of what DOES constitutes as justa causa includes: 1. Becoming sterile or impotent; 2. Developing a serious hereditary disease 3. Committing a serious crime; 4. Becoming mentally ill; 5. Becoming an alcoholic; 6. Disagreement whether the marriage should be in or out of COP; 7. One of the parties has an affair with a 3rd party. In these instances, the rescinding party is not guilty of breach of promise and is therefore not liable for damages or satisfaction. Examples of what DOES NOT constitute as justa causa includes: 1. A strong disagreement between the parents of the parties concerning the wedding arrangements. Krull v Sangerhaus 1980 4 SA 299 (E) 2. The realization by one of the parties that she no longer loves the other party. This is controversial since the possibility of a happy marriage is seriously jeopardized if one of the parties realizes that he or she no longer loves the other party and that to enter into the marriage would be a mistake. However, if the realization that he or she no longer loves the other party were to constitute a justa causa, it would mean that the engagement would lose its legal recognition as an agreement creating obligations. 5. Breach of contract of engagement A person is in B.O.P. if he refuses to through with the wedding or keeps delaying it without good reason. Innocent party is allowed to withdraw from the engagement where the other party commits B.O.P. Eg’s of B.O.P. : 1. One of the parties refuses to proceed with the marriage; 2. Terminating the engagement without justa causa; 3. Behaving in a manner in direct conflict with the commitments implicit in the engagement, eg. have sex with a 3rd party; 4. One of the parties marries someone else during the subsistence of the engagement; 5. Ill-treats their betrothed. Can a person break off an engagement for one of the ff reasons: 1. He/she gets cold feet; 2. Does not love the other person anymore; 3. Decide he/she does not want to get married anymore; 4. Decide he/she does not want to marry his fiancée anymore. The person who commits B.O.P becomes potentially liable for contractual & delictual damages. Van Jaarsveld v Bridges 2010 (4) SCA 558 court: 1. Expressed dissatisfaction with the rules relating to termination of an engagement. 2. Traditional views on engagements are outdated & do not recognize the mores of modern times. 3. Public policy considerations require the courts to reassess the law relating to B.O.P. Guggenheim v Rosenbaum 1961 (4) SA 21 (W) the court held that B.O.P. to marry gives rise to 2 distinct causes of action, viz: 1. Breach of contract; and 2. Actio iniuriarum The innocent party can claim: 1. Damages; and/or 2. Satisfaction Innocent party can claim patrimonial damages ito the Actio Legis Aquiliae for expenses incurred for the intended marriage AND/OR Satisfaction for injury to honour, dignity and reputation ito actio iniuriarum for non-patrimonial loss. B.O.P. gives rise to separate actions, each having its own requirements. Two claims stated separately, but can be raised in the same action. Innocent party must prove patrimonial loss to succeed on an action based on contract. Innocent party must prove injury and intention to injure to succeed in terms of the actio iniuriarum. 6. Damages for breach of contract of engagement Generally, someone can claim for specific performance and/or damages on the basis of positive interest in cases of breach of contract. Damages (positive interest: means damages which puts the wronged party in the same position he/she would have been if there had been no breach of contract. However, with regard to the breach of promise/engage cases, the courts take a different approach. Contract of engagement is regarded as a contract sui generis (of its own kind).  6.1 Specific performance for B.O.P. Courts cannot grant on order for specific performance. Contrary to public policy to enforce a contract of engagement. Reason: consequence of an engagement is the entry into a contract of marriage which has the expectation of sexual intercourse and forced sexual intercourse is a crime. 6.2 Damages for B.O.P.  Damages for Breach of Contract A Positive interest General Rule: Damages are awarded on the basis of positive interest. Iow, the innocent party is entitled to damages that will place him/her in a position he/she would have been had the contract been fulfilled. Above principle was not consistently applied in practice. Generally, in the context of engagement, this means that if the parties were planning on being married in community of property, the injured party can claim half of the other party’s estate as well as maintenance he or she would have been entitled to during the course of the marriage. Had they been planning to be married out of community of property, the injured party can claim and gifts or benefits she would have been entitled to as well as any maintenance she would have received during the subsistence of the marriage. In the past in order to determine prospective loss, the court takes the following factors into account: What the intended matrimonial property regime would have been; How long the marriage would probably have lasted; The age of the plaintiff; and The possibility of the plaintiff marrying someone else. Guggenheim v Rosenbaum the court held that both prospective loss and actual monetary loss incurred or to be incurred can be awarded. However, in Van Jaarsveld v Bridges court held obiter that “courts should not involve themselves with speculation on such a grand scale by permitting claims for prospective losses.” B Claims for Actual Losses (Negative Interest) Negative interest: the injured party must be put in the position he or she would have been in had the contract not taken place. This means the injured party can claim for actual monetary loss as well. Van Jaarsveld v Bridges court held it was easier to justify a claim for actual losses. Eg. of Patrimonial (Actual) Loss: 1. Recovery of expenses incurred for wedding and honeymoon preparations; 2. Trousseau; 3. Change of residence; 4. Loss of employment; 5. Cancellation of the wedding 6. Costs incurred by agreement with the other party. As a result of the approach followed in Guggenheim, the contract of engagement is considered to be a contract sui generis (of its own kind) since it allows for claims on the basis of both positive and negative interest. The decision in Guggenheim was confirmed and applied in several subsequent Appellate Division cases, most notably Bull v Taylor 1965 4 SA 29 (A). Since prospective loss wasn’t specifically claimed in Van Jaarsveld, the views of the court regarding whether or not a claim of prospective loss should be allowed merely has persuasive value. However, in Cloete v Maritz ZAWCHC 69, the High Court of the Western Cape followed the views expressed by Harms DP in the Van Jaarsveld case and held that claims for prospective loss on the basis of breach of promise was not a valid cause of action. Although this decision deviates from earlier decisions by the Supreme Court of Appeal, which contradicts the principle of judicial precedent, the court held that a High Court was entitled to deviate from pre- Constitutional decisions of a higher court if, taking Constitutional values into account, the earlier decision no longer reflects the boni mores or public interest. As such, this court held that the current approach to engagements does not reflect the current boni mores or public policy considerations based on the values of our Constitution. Accordingly, a claim for prospective loss was not upheld in this case. NOTE: This is a decision of the Western Cape High Court and is therefore only binding on courts in the Western Cape. It has persuasive value on courts in other courts in South Africa only. If Cloete chooses to appeal the decision to the SCA and the SCA upholds the decision, only then will the decision become binding on the rest of South Africa. This means that should a claim for breach of promise come before any court outside of the Western Cape, the plaintiff is still entitled to claim for prospective loss together with a claim for actual loss. It is submitted that the persuasiveness of the obiter dictum from Van Jaarsveld and the decision in Cloete will result in a denial of a claim for prospective loss. 6.3 Delictual Damages: actio iniuriarum Innocent party can also bring a delictual claim under the actio iniuriarum to claim solatium (monetary compensation) for the infringement of personality rights. Requirements for a claim in terms of the actio iniuriarum: 1. Iniuria (injury) 2. Animus iniuriandi (intention to injure) Kinds of personality interests infringed: 1. Broken heart; 2. Injury to pride; 3. Injury to reputation if the engagement was broken off in a publicly humiliating way. Guggenheim v Rosenbaum the court held that merely breaking off an engagement was not enough on its own to constitute a delict. The court held that the plaintiff could only succeed in bringing the actio iniuriarum if the requirements for this remedy were satisfied. The plaintiff’s personality rights must in fact have been infringed. Kinds of personality interests that might be infringed: (a) Injury to the plaintiff’s feelings ( broken heart) (b) Injury to the plaintiff’s pride (c) Injury to the plaintiff’s reputation if the emgagement was broken off in a publicly humiliating way. Van Jaarsveld v Bridges the court held that the plaintiff could only succeed in bringing the actio iniuriarum if the manner the engagement was broken off was OBJECTIVELY insulting & humiliating. This means that the way in which the breach was committed must have been done in a contumelious and insulting way. The court assesses this by taking the following factors into account: The way in which the breach of promise occurred; Their previous life experience; The motives behind that course of action; The social status of the parties. This could be assessed by looking at the prevailing norms of society. Would the reasonable person regard the manner of the break-up insulting or offensive & with the intention to injure the recipient’s dignity & self-esteem. Amount awarded is at the discretion of the court. Amount cannot be computed beforehand with mathematical precision. CASE LAW: 1. Davel v Swanepoel 1954 1SA 383(A) 2. Smit v Jacobs 1918 OPD 30 3. Guggenheim v Rosenbaum 1961 4 SA 21 (W) 4. Mocke v Fourie (1893) 3 CTR 313 Courts are hesitant to award satisfaction where one of the parties realizes after the conclusion of the engagement that she no longer loves the other party as a prospective spouse should, and in a fair and open manner terminates the engagement. (Mocke v Fourie) Where the plaintiff knew that the other party was married when he promised to marry her, she cannot later claim damages for satisfaction. If the plaintiff was unaware of the marriage, she can bring on action for contumelia ie. insult. (Viljoen v Viljoen 1944 CPD 137) 6.4 Reconsidering damages for termination of engagement General purpose of an engagement is for the parties to discover whether or not they can pursue a relationship in a manner that will result in a successful marriage. If the parties find that they are unsuited, then the purpose of the engagement period is achieved as an unsuccessful marriage has been avoided. Illogical and unfair that a party should be punished under the law for avoiding a marriage that is likely to be a failure. Also illogical to attach more serious consequences to an engagement than marriage as a divorce only requires irretrievable breakdown of the marriage and fault is not a requirement. In the Van Jaarsveld case Harms DP stated that the traditional views on engagements are “outdated and do not recognise the mores of our time” and “public policy considerations require the courts to assess the law relating to breach of promise.” Van Jaarsveld v Bridges: The unwillingness to marry is itself clear evidence of a breakdown of the engagement. It would, therefore, be illogical to attach more serious consequences to an engagement than to a marriage. In 1969 the English Law Commission formulated a report entitled Breach of Promise of Marriage wherein they stated that the “stability of marriages is so important to society that the law should not countenance rights of action the threat of which may push people into marriages which they would not otherwise undertake.” As a result, the action for breach of promise was abolished in England, a decision that was followed in other countries, such as Scotland, Australia and most European countries. 6.5 Return of engagement gifts Sponsolatia largitas: gifts made with a view to the marriage, eg, appliances for use in the future home Arrhae sponsolatiae: gifts made to show the seriousness of the promise, eg, engagement ring Inconsequential gifts/Tokens of affection: gifts to which no specific meaning is attached and which has already been used up, alienated or lost, eg, chocolates, flowers, books Where the engagement is terminated by mutual agreement, the following must be returned: sponsolatia largitas arrhae sponsolatiae inconsequential gifts need not be returned. Above rules apply where the engagement has been terminated due to justa causa. B.O.P. has occurred: The following rules apply: 1. Innocent party may claim sponsolatia largitas and arrhae sponsolatiae which she gave to the guilty party. 2. Innocent party may retain the arrhae sponsolatiae and sponsolatia largitas he or she received from the other party. 3. If the innocent party claims damages, the value of the gifts must be set off against the damages claimed.