An engagement – pactum de contrahendo.

“a contract is an agreement two or more parties enter into with the serious intention of creating a legal obligation, a contract to contract.”

In this article the legal consequences of breaking off an engagement will be discussed. Can you institute a claim for damages due to a breach of this contract?

To enter into a valid engagement contract the following requirements must be met:

Both parties must have the capacity to act, which generally means that parties must be older than 18 years or if they are minors, that they have the necessary consent from their guardians or emancipated by a court of law.

Both parties must voluntarily consent to the engagement. They must be permitted by law to marry each other. For example, you may only be engaged to one party, unless a polygamous engagement applies under African Customary Law. One cannot marry a sibling/parent.

A material mistake, such as the identity of either of the parties, will render the engagement void. There must also be no misrepresentations made by either of the parties.

It is important to note that no law in South Africa requires an engagement before marriage. It is however on a practical note, to be encouraged.

Once a date for the marriage has been determined, there is a reciprocal duty to marry on that date, unless the date is changed by mutual agreement. Further, if no date has been determined, it is presumed that the marriage will take place within a reasonable time. Nevertheless, either of the parties may terminate the engagement, which could attract a claim for damages or return of gifts.

An engagement can be terminated in the following ways:

MarriageDeath of either parties
Mutual agreement
Withdrawal of parental consent if one/more of the parties are minors
Breach of promise/misrepresentation
Termination by one party that is justified and based on sound reasons

The ‘innocent’ party may be entitled to sentimental damages if the repudiation was of a rude and arrogant nature. This requires that the ‘guilty’ party, in putting an end to the engagement, acted purposely wrongfully (gives rise to a delictual action). It does not matter whether the termination of the engagement was justified; the question is the manner in which the engagement is brought to an end. The fact that the feelings of the innocent party were hurt or that he/she felt insulted or abandoned is not enough for a successful claim for delictual damages.

An engagement may be cancelled without financial consequences if there is a just cause for the cancellation. Just cause is defined as any event, condition or action of one party that jeopardises the chances of a long and happy marriage, and which would induce any right-minded member of society to withdraw from the engagement. Just cause can range from unfaithfulness to an unwillingness or lack of desire to marry.

It is important to establish whether there is a just cause for cancellation. If there is, the engagement may be validly terminated. A reason such as sterility or criminal activity, if it was only brought to the attention of the other party after agreeing to marry, may provide enough grounds to break off the engagement. If both parties agree to terminate the engagement, all gifts given in anticipation of the marriage, including the engagement ring, must be returned.

In the case of Van Jaarsveld v Bridges (yes, Bles’s daughter!), the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him or her in the position he would have been had they gone through with the marriage. Previous court judgements indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances.

In conclusion, note that a promise to marry is an agreement which attracts legal consequences; therefore one should not be hasty when deciding to ask the big question.

Contributor: Andre Calitz (Senior Associate) (Commercial/Fiduciary/Litigation Departments)  (Cape Town Office)
E-mail:   andrec@tmj.co.za
Tel:  021 - 823 9928