Breach of promise is a
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
, 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
In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the post-classical period of global history. It began with the fall of the Western Roman Empire a ...
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
Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between t ...
a woman was considered, in many jurisdictions, a legally binding
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
. 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
A dowry is a payment, such as property or money, paid by the bride's family to the groom or his family at the time of marriage. Dowry contrasts with the related concepts of bride price and dower. While bride price or bride service is a payment b ...
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
English usually refers to:
* English language
* English people
English may also refer to:
Peoples, culture, and language
* ''English'', an adjective for something of, from, or related to England
** English national ide ...
-speaking,
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
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
Nevada ( ; ) is a U.S. state, state in the Western United States, Western region of the United States. It is bordered by Oregon to the northwest, Idaho to the northeast, California to the west, Arizona to the southeast, and Utah to the east. N ...
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
The age of majority is the threshold of legal adulthood as recognized or declared in law. It is the moment when minors cease to be considered such and assume legal control over their persons, actions, and decisions, thus terminating the contr ...
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
Consanguinity ("blood relation", from Latin '' consanguinitas'') is the characteristic of having a kinship with another person (being descended from a common ancestor).
Many jurisdictions have laws prohibiting people who are related by blood fr ...
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
Georgia most commonly refers to:
* Georgia (country), a country in the Caucasus region of Eurasia
* Georgia (U.S. state), a state in the Southeast United States
Georgia may also refer to:
Places
Historical states and entities
* Related to the ...
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
South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring countri ...
, engagements could be dissolved by mutual agreement. Impotence, sterility, criminality, and
alcoholism
Alcoholism is, broadly, any drinking of alcohol (drug), alcohol that results in significant Mental health, mental or physical health problems. Because there is disagreement on the definition of the word ''alcoholism'', it is not a recognize ...
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
Virginity is the state of a person who has never engaged in sexual intercourse. The term ''virgin'' originally only referred to sexually inexperienced women, but has evolved to encompass a range of definitions, as found in traditional, modern ...
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
George Best (22 May 1946 – 25 November 2005) was a Northern Irish professional footballer who played as a winger, spending most of his club career at Manchester United. A highly skilful dribbler, Best is regarded as one of the greatest p ...
, 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'' 965HKLR 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
Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ag ...
.
North America
In Canada, the common law action has been abolished in some provinces by legislation. For example, in Saskatchewan
Saskatchewan ( ; ) is a Provinces and territories of Canada, province in Western Canada, western Canada, bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, to the northeast by Nunavut, and on t ...
, 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. This case was tried in the chambers of the Virginia Company
The Virginia Company was an English trading company chartered by King James I on 10 April 1606 with the object of colonizing the eastern coast of America. The coast was named Virginia, after Elizabeth I, and it stretched from present-day Main ...
, and never went to a civil court, as the plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
withdrew his complaint. The first successful case was ''Stretch v Parker'' in 1639.
In 1915, Louis A. Merrilat, an American football
American football (referred to simply as football in the United States and Canada), also known as gridiron, is a team sport played by two teams of eleven players on a rectangular field with goalposts at each end. The offense, the team with ...
end
End, END, Ending, or variation, may refer to:
End
*In mathematics:
** End (category theory)
** End (topology)
**End (graph theory)
** End (group theory) (a subcase of the previous)
**End (endomorphism)
*In sports and games
**End (gridiron footbal ...
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
Clarence Seward Darrow (; April 18, 1857 – March 13, 1938) was an American lawyer who became famous in the early 20th century for his involvement in the Leopold and Loeb murder trial and the Scopes "Monkey" Trial. He was a leading member of t ...
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 rings, previously uncommon, began to become commonplace, and formed a sort of financial security for the woman.
South Carolina
)''Animis opibusque parati'' ( for, , Latin, Prepared in mind and resources, links=no)
, anthem = " Carolina";" South Carolina On My Mind"
, Former = Province of South Carolina
, seat = Columbia
, LargestCity = Charleston
, LargestMetro = ...
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
National Paralegal College (NPC) is a private for-profit online college headquartered in Phoenix, Arizona and focused on legal education. It is accredited by the Distance Education Accrediting Commission.
History
National Paralegal College was ...
. 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
Illinois ( ) is a U.S. state, state in the Midwestern United States, Midwestern United States. Its largest metropolitan areas include the Chicago metropolitan area, and the Metro East section, of Greater St. Louis. Other smaller metropolita ...
, 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.
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
Valentine's Day, also called Saint Valentine's Day or the Feast of Saint Valentine, is celebrated annually on February 14. It originated as a Christian feast day honoring one or two early Christian martyrs named Saint Valentine and, throu ...
or Christmas
Christmas is an annual festival commemorating Nativity of Jesus, the birth of Jesus, Jesus Christ, observed primarily on December 25 as a religious and cultural celebration among billions of people Observance of Christmas by country, around t ...
, 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 rings 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
At common law, criminal conversation, often abbreviated as ''crim. con.'', is a tort arising from adultery. "Conversation" is an old euphemism for sexual intercourse that is obsolete except as part of this term.
It is similar to breach of pro ...
was a similar tort, arising from adultery
Adultery (from Latin ''adulterium'') is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal ...
, in which a married person could sue the person with whom his or her spouse had engaged in adultery. Alienation of affections
Alienation of affections is a common law tort, abolished in many jurisdictions. Where it still exists, an action is brought by a spouse against a third party alleged to be responsible for damaging the marriage, most often resulting in divorce. The ...
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
Maria Edgeworth (1 January 1768 – 22 May 1849) was a prolific Anglo-Irish novelist of adults' and children's literature. She was one of the first realist writers in children's literature and was a significant figure in the evolution of the n ...
, 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
Charles John Huffam Dickens (; 7 February 1812 – 9 June 1870) was an English writer and social critic. He created some of the world's best-known fictional characters and is regarded by many as the greatest novelist of the Victorian e ...
in ''Pickwick Papers
''The Posthumous Papers of the Pickwick Club'' (also known as ''The Pickwick Papers'') was Charles Dickens's first novel. Because of his success with '' Sketches by Boz'' published in 1836, Dickens was asked by the publisher Chapman & Hall to ...
'', 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
A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.
Jury trials are used in a significant ...
''), 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
A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.
Jury trials are used in a significant ...
'' is an 1875 curtain-raiser
A curtain raiser is a short performance, stage act, show, actor or performer that opens a show for the main attraction. The term is derived from the act of raising the stage curtain. The first person on stage has "raised the curtain".
The fashio ...
and comic opera
Comic opera, sometimes known as light opera, is a sung dramatic work of a light or comic nature, usually with a happy ending and often including spoken dialogue.
Forms of comic opera first developed in late 17th-century Italy. By the 1730s, a ne ...
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 f ...
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'', Joan Blondell
Joan Blondell (born Rose Joan Bluestein; August 30, 1906 – December 25, 1979) was an American actress who performed in film and television for 50 years.
Blondell began her career in vaudeville. After winning a beauty pageant, she embarked on ...
and Glenda Farrell
Glenda Farrell (June 30, 1904 – May 1, 1971) was an American actress. Farrell personified the smart and sassy, wisecracking blonde of the Classical Hollywood films. Farrell's career spanned more than 50 years, appearing in numerous Broadwa ...
play two process servers trying to serve a rich playboy, Ross Alexander
Ross Alexander (born Alexander Ross Smith; July 27, 1907 – January 2, 1937) was an American stage and film actor.
Early years
Alexander was born Alexander Ross Smith in Brooklyn, New York, the son of Maud Adelle ( Cohen) and Alexander Ross ...
, with a breach of promise suit.
The episode "A Woman's Privilege" of the featurette series '' The Scales of Justice'' 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
Sir James Paul McCartney (born 18 June 1942) is an English singer, songwriter and musician who gained worldwide fame with the Beatles, for whom he played bass guitar and shared primary songwriting and lead vocal duties with John Lennon. One ...
'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
''Frasier'' () is an American television sitcom that was broadcast on NBC for 11 seasons. It premiered on September 16, 1993, and ended on May 13, 2004. The program was created and produced by David Angell, Peter Casey (screenwriter), Peter Case ...
'', Donny files a suit against Daphne for running away with Niles on the day of their wedding.
See also
* Seduction (tort)
The tort of seduction was a civil wrong or tort in common law legal systems, and still exists in some jurisdictions.
Originally, it allowed an unmarried woman's father - or other person employing her services - to sue for the loss of these servi ...
* Wreath money
The obsolete German legal concept ''Kranzgeld'' (literally "wreath money") is heart balm (see breach of promise) rewarded as compensation to a woman of "immaculate reputation" if a man broke off his engagement (or caused it to be broken off e.g. th ...
References
{{reflist
Marriage
Tort law
Legal history of England