Breach of promise is a
common law tort, abolished in many jurisdictions. It was also called breach of contract to marry,
[N.Y. Civil Rights Act article 8, §§ 80-A to 84. ] and the remedy awarded was known as heart balm.
From at least the
Middle Ages until the early 20th century, a man's promise of
engagement
An engagement or betrothal is the period of time between the declaration of acceptance of a marriage proposal and the marriage itself (which is typically but not always commenced with a wedding). During this period, a couple is said to be ''fi ...
to
marry a woman was considered, in many jurisdictions, a legally binding
contract. If the man were to subsequently change his mind, he would be said to be in "breach" of this promise and subject to litigation for damages.
The converse of this was seldom true; the concept that "it's a woman's prerogative to change her mind" had at least some basis in law (though a woman might pay a high social price for exercising this privilege)—and unless an actual
dowry of money or property had changed hands or the woman could be shown to have become engaged to a man only to enable her use of his money, a man was only rarely able to recover in a "breach of promise" suit against a woman, were he even allowed to file one.
Changing social attitudes toward morals have led to the decline of this sort of action. Most jurisdictions, at least in the
English-speaking,
common law world, have become increasingly reluctant to intervene in cases of personal relationships not involving the welfare of children or actual violence. Many have repealed all laws regarding such eventualities,
whereas in others the statute allowing such an action may technically remain on the books but the action has become very rare and unlikely to be pursued with any probability of success. Arising in its stead are judicial opinions and/or statutes permitting a breach of contract action for wedding expenses incurred when the nuptials are called off, or for loss of employment, moving and living expenses incurred by one party as a result of an engagement which is later broken.
Cause of action
A breach of promise suit required a legally valid marriage engagement.
Under
Nevada law, this need not be in writing (as a prenuptial agreement is required to be), but may have been made orally by both parties. All that is required is that each have promised the other to marry the other at some future time (no date certain is required). Generally, promises made by—but not to—people who had not reached the
age of majority could be broken at any time, without penalty, as could the promise made by a married person (e.g., conditional upon the death of the current spouse), so long as the other party knew that the person was married at the time. Similarly, an engagement between people who were not legally permitted to marry (e.g., because of
consanguinity laws) was invalid.
Valid engagements could be broken without penalty by either party upon discovery of significant and material facts, such as previously unknown financial state (if completely concealed, rather than partially revealed; the Shell case in
Georgia in 2008 permitted a jury award to the woman of $150,000 although the man breaking the engagement stated that he did so after paying $30,000 of her debts when he discovered she still owed more),
bad character, fraud, too-close blood relations, or the absolute physical or mental incapacity of the betrothed.
In
South Africa, engagements could be dissolved by mutual agreement. Impotence, sterility, criminality, and
alcoholism also formed valid reasons to end an engagement. Additionally, the person refusing to marry was unable to sue for breach of promise.
Some of the original theory behind this tort was based on the idea that a woman would be more likely to give up her
virginity to a man if she had his promise to marry her. If he seduced her and subsequently refused marriage, her lack of virginity would make her future search for a suitable husband more difficult or even impossible.
However, in the 18th and 19th centuries, the main factors were compensation for the denial of the woman's expectations of becoming "established" in a household (supported by her husband's wealth) and possible damage to her social reputation, since there were a number of ways that the reputation of a young never-married woman of the genteel classes could be damaged by a broken engagement, or an apparent period of intimacy which did not end in a publicly announced engagement, even if few people seriously thought that she had lost her virginity. She might be viewed as having broken the code of maidenly modesty of the period by imprudently offering up her affections without having had a firm assurance of future marriage.
During the early 20th century, social standards changed so that a woman who had pre-marital sex was no longer considered to be "ruined". During that time, half of American women lost their virginity during their marriage engagements.
[ Compensation was based on emotional distress and the woman's reduced opportunity for a future marriage. Damages were greatly increased if the couple had engaged in pre-marital sexual intercourse.]
Laws in different countries
England and Wales
In England and Wales until 1970 a woman whose fiancé broke off their engagement could sue him for breach of promise, whilst a woman, was permitted to change her mind without penalty. The last prominent case was in 1969, when Eva Haraldsted sued George Best, a prominent footballer, for breach of promise. England and Wales undertook legal reforms in 1970 that generally made property disputes related to engagements to be handled like property disputes between married couples.
On 1 January 1971 the tort was abolished in England and Wales by section 1 of the Law Reform (Miscellaneous Provisions) Act 1970.
Asia
In Hong Kong, similar to the situation in England, engagements to marry are not enforceable at law by legislation, damages for distress caused and reliance on the breach of promise are claimable, if the plaintiff suffers sufficiently serious consequences in light of the specific circumstances, for instance in ''Cheung Suk Man v So Shek Keung'' 965
Year 965 ( CMLXV) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* Arab–Byzantine War: Emperor Nikephoros II conquers the fortress cities of Tar ...
HKLR 485.
In 2019, the Supreme Court of India
The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
ruled that sex on false promise of marriage constitutes rape.
North America
In Canada, the common law action has been abolished in some provinces by legislation. For example, in Saskatchewan, the action for breach of promise was formally abolished by legislation in 2010.
The first known lawsuit
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...
for breach of promise in colonial America
The colonial history of the United States covers the history of European colonization of North America from the early 17th century until the incorporation of the Thirteen Colonies into the United States after the Revolutionary War. In the ...
and the first in which the defendant was a woman was Cecily Jordan Farrar
Cecily Jordan Farrar was one of the earlier women settlers of colonial Jamestown, Virginia. She arrived in the colony as a child in 1610 and was established as one of the few female ancient planters by 1620. After her husband Samuel Jordan di ...
. This case was tried in the chambers of the Virginia Company, and never went to a civil court, as the plaintiff withdrew his complaint. The first successful case was ''Stretch v Parker'' in 1639.
In 1915, Louis A. Merrilat
Louis Alfred "Merry" Merrilat (Merillat), Jr. (June 9, 1892 – April 26, 1948) was an American football end and military officer. He played college football with Army and was selected as a first-team All-American in both 1913 and 1914. He was ...
, an American football end and military officer active in the early 20th century, was sued by Helen Van Ness for breach of promise after breaking off an engagement. Merrilat hired the noted Chicago attorney Clarence Darrow to defend him against the charges, which were eventually dismissed.
In the United States, most states repealed breach-of-promise laws or limited them, beginning in 1935. Partly as a result, expensive diamond engagement ring
An engagement ring, also known as a betrothal ring, is a ring indicating that the person wearing it is engaged to be married, especially in Western cultures. A ring is presented as an engagement gift by a partner to their prospective spouse when ...
s, previously uncommon, began to become commonplace, and formed a sort of financial security for the woman.
South Carolina is one of the states that still recognizes a breach of promise action
''Campbell v Robinson''
398 S.C. 12, 726 S.E. 2d 221 (Ct. App. 2012). About one-half of U.S. states still permit such lawsuits, according to the National Paralegal College. Examples of such suits include a jury award of $150,000 in the 2008 Shell case in Georgia,[ and $130,000 in a North Carolina jury trial December 17, 2010, in the case of ''Dellinger v. Barnes'' (No. 08 CVS 1006). Laws vary by state. In Illinois, for example, documented wedding expenses can be recovered, but damages for emotional distress are prohibited, and notice of an intent to sue must be provided within three months of the engagement being dissolved.]
Determining damages
Damages were generally permitted for expenses incurred on the expectation of a marriage, such as property transferred or wedding expenses. In some jurisdictions, emotional distress, loss of social standing, and loss of virginity were also possible sources of damages.
Some countries also allowed the woman to sue for loss of future income, that is, for money that she would have had, if her very wealthy fiancé had not broken off the engagement. In 20th-century reforms, this was generally abolished over fears of gold digging Gold digging may refer to:
* Gold digger, a person, usually female, who enters a relationship purely for monetary gain
* Gold mining, the process of mining for gold ore
* Gold panning
Gold panning, or simply ''panning'', is a form of placer min ...
.
One challenge in settling disputes for breach of promise was determining whether a gift
A gift or a present is an item given to someone without the expectation of payment or anything in return. An item is not a gift if that item is already owned by the one to whom it is given. Although gift-giving might involve an expectation ...
made during the engagement was an absolute gift—one given permanently, with no strings attached—or a conditional gift, given in the expectation of the marriage taking place. If an engagement gift was given on a holiday, such as Valentine's Day or Christmas, the gift could be considered to be non-contingent, and given partially for reasons other than marriage, and thus does not have to be returned. Christmas presents are generally taken to be absolute gifts, and thus cannot be recovered if the engagement dissolves, but engagement ring
An engagement ring, also known as a betrothal ring, is a ring indicating that the person wearing it is engaged to be married, especially in Western cultures. A ring is presented as an engagement gift by a partner to their prospective spouse when ...
s are generally taken to be conditional gifts, at least under most circumstances, which means that they must be returned if the recipient no longer chooses to go through with the marriage. Whether an engagement ring must be returned if the giver breaks off the engagement varies.
Similar actions in law
Criminal conversation was a similar tort, arising from adultery, in which a married person could sue the person with whom his or her spouse had engaged in adultery. Alienation of affections was another similar tort against a third party who encouraged the adultery, or who was otherwise responsible for the breakdown of the marriage.
Non-common-law jurisdictions
France nominally did not permit breach of promise actions, holding that marriage must involve free consent from both parties, and if the engagement is legally binding, then free consent is not possible. However, any party may sue for losses as a result of improper behavior by an engaged person.
In Scots law before 1812, damages were limited only to actual financial losses.
After World War II, German, Spanish, and Italian law allowed for the recovery of actual damages incurred as a result of a failed engagement.
In popular culture
Literature
The social damage from receiving attention from a man is discussed in a passage from the 1801 novel ''Belinda'' by Maria Edgeworth, where an older woman is urging Miss Belinda Portman to give a suitor more time to attach her affections, though Belinda is worried that even by just passively accepting his attentions for a certain time, she might find herself "entangled, so as not to be able to retract", even "if it should not be in my power to love him at last":
Breach-of-promise actions were part of the standard stock-in-trade of comic writers of the 19th century (such as Charles Dickens in '' Pickwick Papers'', or Gilbert and Sullivan
Gilbert and Sullivan was a Victorian era, Victorian-era theatrical partnership of the dramatist W. S. Gilbert (1836–1911) and the composer Arthur Sullivan (1842–1900), who jointly created fourteen comic operas between 1871 and 1896, of which ...
in '' Trial by Jury''), but most middle- and upper-class families were reluctant to use them except in rather extreme circumstances (such as when a daughter became pregnant by a man who then refused to marry her), since they led to wide publicity being given to a scrutiny of personal concerns, something which was strongly repugnant to the family feeling of the period (especially where young women were concerned).
Media
'' Trial by Jury'' is an 1875 curtain-raiser and comic opera that enacts a satirical trial for breach of promise. The successful musical launched the careers of librettist W.S. Gilbert
Sir William Schwenck Gilbert (18 November 1836 – 29 May 1911) was an English dramatist, librettist, poet and illustrator best known for his collaboration with composer Arthur Sullivan, which produced fourteen comic operas. The most ...
and composer Arthur Sullivan
Sir Arthur Seymour Sullivan (13 May 1842 – 22 November 1900) was an English composer. He is best known for 14 comic opera, operatic Gilbert and Sullivan, collaborations with the dramatist W. S. Gilbert, including ''H.M.S. Pinaf ...
.
In the 1935 film ''We're in the Money
"The Gold Diggers' Song (We're in the Money)" is a song from the 1933 Warner Bros. film ''Gold Diggers of 1933'', sung in the opening sequence by Ginger Rogers and chorus. The entire song is never performed in the 1933 movie, though it introduce ...
'', Joan Blondell and Glenda Farrell play two process servers trying to serve a rich playboy, Ross Alexander, with a breach of promise suit.
The episode "A Woman's Privilege" of the featurette series ''The Scales of Justice
''The Scales of Justice'' was a series of thirteen British cinema featurettes produced between 1962 and 1967 for Anglo-Amalgamated at Merton Park Studios in London. The first nine episodes were made in black and white, the last four in colour. ...
'' recounts the unusual case of a man who sues a woman for breach of promise following a cruise ship romance engagement.
In the film '' A Hard Day's Night'', the character playing Paul McCartney's grandfather is pursued by young women who wish to sue the older man for breach of promise.
In season 8 of the TV show '' Frasier'', Donny files a suit against Daphne for running away with Niles on the day of their wedding.
See also
* Seduction (tort)
* Wreath money
References
{{reflist
Marriage
Tort law
Legal history of England