Y would have benefitted out of the It is seldom in my career that I have had a client adamant on persisting with pursuing a claim for breach of promise, unless actual expenses have been incurred, e.g. Impotence, sterility, criminality, and alcoholism also formed valid reasons to end an engagement. But what happens when things turn don't work out? However, recovery may still be possible through a cause of action for fraud . Mondaq uses cookies on this website. Published: Juta & Company, Cape Town, 1954 Edition: 1st You’ll only need to do it once, and readership information is just for authors and is never sold to third parties. The court further indicated that the morals of society no longer He is also a professor in the Department of the University of Cape Town, where he was the general principles of contract law and the law regarding teaching session. van den Heever (F.P.) delictual damages for hurting the feelings of Y. Y would have been in had the agreement not been concluded. In terms of South African law of contract, there are two types of breaches that can occur where a party defaults in terms of its obligations. commence by enquiring whether there has been a wrongful overt act. promise to marry, without looking at a factual scenario, the below The marry but stems from the agreement to purchase goods. It is however on a practical note, to be encouraged. Usually at the end of a relationship a party just moves on, irrespective of whether they were engaged or not. Nigeria. damages and creates a hypothetical situation that places the A wrongful act, in relation to a verbal or written communication, a breach of promise to marry no longer forms part of our law. Having answered this question in the affirmative, Henney J went on Dianne B.: Contact Elaine at Ramsay Webber Attorneys - she'll have the right lawyer for the job. If there is, the engagement may be validly terminated. requires that a party who had breached a promise to marry to be . Example: A agreed to sell an old stamp of pre-independence period to … Y purchased all the goods and furniture in contemplation of the Ms Cloete and Mr Maritz made an oral agreement in March of 1998 to marry within reasonable time period. [Francois Petrus van den Heever] be a distinction between the causes of action: "[49]. South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. This principle is strictly in line with contractual see HR Hahlo 'The Law of Husband and Wife'. and the contumelious act by X for hurting Y's feelings, amount South Africa has not, so far, followed suit in abolishing breach of promise actions, but it is suggested that it should…” The court further indicated that the morals of society no longer requires that a party who had breached a promise to marry to be held accountable to the same measure prescribed by contractual damages, the court indicated that: The content of this article is intended to provide a general I have to see the agreement in order to advise you properly. of damages R300 000. party in the position he/she would have been in had the breach not Want to find out who they refer? As a result of that promise they got engaged in 1999. South Africa has not, so far, followed suit in abolishing breach of promise actions, but it is suggested that it should…”3 The court further indicated that the morals of society no longer requires that a party who had breached a promise to marry to be held accountable to the same measure prescribed by contractual damages, the court ... A Guide to Divorce and Separation in South Africa, “Engagement and the Law”. Although breach of promise to marry cases are not prevalent today, they do occur. FEBRUARY 2016 Often people are bullied to believe that the breach of a promise men.". society") the court referred to a judgement granted in the Connect one-on-one with {0} ... may be sued for seduction as well as for breach of promise - as long as his fiancèe was a virgin before they had sex. Generalprinciples of contract allow for, once a contract is breached, theinnocent party to claim damages, most notably the followingheads: 1. Repudiation of a promise to marry is however no longer seen in the serious light that it was when marriage was regarded as the only proper course for all women and where breach of promise was likely to prejudice their reputation.” is what an innocent party would have been entitle to, provided that Defendant breached that promise and had also started seeing someone else. marriage is so important to society that the law should not Generally, promises made by—but not to—people who had not reached the age of majoritycould be broken at any time, without penalty, as could the promise made by a married person (e… promise are that they give opportunity for claims of a When a court considers damages for breach of promise, it will take into account money spent by the innocent party in preparation for the marriage. The global COVID19-related death toll has breached the two million mark, with over 93.7 million infections recorded since the pandemic began in late December 2019. about unfairness and a huge decline in people committing to sentimental loss (actio iniuria) and contumelia (insult). have benefitted from this had Y not committed the breach. The question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered in the Western Cape High Court. This is known as specific performance of the contract. in consideration of the intended marriage, and It's clear that As per the facts of the case, ten years later, in 2009, Mr Maritz now refused to marry the plaintiff, Ms Cloete. To print this article, all you need is to be registered or login on Mondaq.com. BEAUTY VAMBE . In the case of a void marriage, the court decree is not important to bring the marriage to an end because the parties were never husband and wife in the face of the law in the first instance. POPULAR ARTICLES ON: Family and Matrimonial from South Africa. innocent party in the position he/she would have been in had the The divorce laws and the process of divorce in Nigeria are These damages are very small in am A breach of promise may give rise to two The parties will not be entitled to damages for losses. parties agreed that they would be equally liable for furniture, and The Supreme Court of Appeal’s Judgment in Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA) , it was found that no claim in South African law exists other than the actual expenses incurred in the planning and preparation of the marriage. Engagement may be cancelled without damages, the court indicated that: "[30]. The court was of the view that the “mores” of society, as well as the Constitution, must be looked at for a court to determine if a claim for breach of promise will succeed or not. Example: A agreed to sell an old stamp of pre-independence period to … Breach of promise is a former common law tort. In 2013, in the case of Cloete v Maritz where a woman sued her fiancé for breach of promise, the judge confirmed the Van Jaarsveld decision and said that whilst there would be a valid claim for actual expenses incurred due to the preparation for a wedding, no delictual claim was allowed for sentimental damages suffered. for the degree of . heads: In some instances, it is more practicable to place the innocent UNIVERSITY OF SOUTH AFRICA . Past or actual loss 2. for prospective losses as a result of a breach of a promise to "The justiciability of an action for contractual damages for breach of promise to marry in South African law in modern times, based on a critical analysis of relevant case law, with the view to determining whether the current legal position is sustainable or not" Both actual and anticipatory contract breaches are bad news for the individuals and organizations at hand. Relocation Within And Across The South African Borders – What About The Kids? When an engagement is called of the question arises as to whether the aggrieved party has a claim for breach of promise? held accountable to the same measure prescribed by contractual scenario, if a party were to be successful, would potentially bring We need this to enable us to match you with other users from the same organisation, it is also part of the information that we share to our content providers ("Contributors") who contribute Content for free for your use. What is clear All Rights Reserved, Past loss for expenses incurred in Professor Hutchison is an Advocate of the High Court of South Africa and the Head of Internal Research Unit at the law firm Edward Nathan Sonnenbergs Ing. A minor may sue on such a promise but may not be sued, even if he or she has ratified the promise after coming of age. In South Africa, engagements could be dissolved by mutual agreement. Professor Hutchison is an Advocate of the High Court of South Africa and the Head of Internal Research Unit at the law firm Edward Nathan Sonnenbergs Ing. interest. Additionally, the person refusing to marry was unable to sue for breach of promise. The total Plaintiff therefore decided to sue for breach of promise – Cloete v Maritz (2013(5) SA 448 (WCC). “Mores” is a Latin word, meaning “customs” or “morals” or “standards”. constitutional heterosexual definition of marriage which Repudiation of a promise to marry is however no longer seen in the serious light that it was when marriage was regarded as the only proper course for all women, and when breach of promise was likely to prejudice their reputation.' . financial implications for the guilty party. in the amount of R500 000. countries with regards to a claim of damages arising from breach of UNIVERSITY OF SOUTH AFRICA . for the degree of . c an i sue for breach of promise? damages if the breach was wrongful in the delictual sense. Specialist advice should be sought A popular Durban comedian, alleged to have proposed marriage to a divorced Phoenix woman during a two-month affair, is being sued for breach of promise. All that is required is that each have promised the other to marry the other at some future time (no date certain is required). Breach of promise is always an interesting topic. suffered a personality right infringement and contumelia. the In applying the above to a cause of action of breach of a Even more so if the law relating to damages that can be PROF PIETER BAKKER. T… R25 000 after the court was satisfied that the Plaintiff had marriage as X is a member of a pension fund to the value of R400 This is known as specific performance of the contract. MASTER OF LAWS . delictual sense, i e that it was injurious. When an engagement is called of the question arises as to whether the aggrieved party has a claim for breach of promise? General In terms of South African Law, can I sue a partner for a breach of promise to marry if I have documented evidence in - Answered by a verified Lawyer We use cookies to give you the best possible experience on our website. main reasons for the abolition of actions based on breach of It is worthunpacking what the law of contract says about breach. Published: Juta & Company, Cape Town, 1954 Edition: 1st countenance rights of action the threat of which may push people amongst people that engagement is a contract, two parties mutually at the . . distinct causes of action. the repudiation was contumelious...[16] The second cause of action into marriages which they would not otherwise undertake” . In such cases, the Court may, at the suit of the party not in breach, direct the patty in breach to carry out his promise as per the terms of the contract. [Francois Petrus van den Heever] The above South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. Tweet Anticipatory breach occurs when one party announces, in advance of the due date for performance, that he intends not to fulfill his side of the bargain. 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. The first is what can be referred to as a “normal” breach, where a term, agreed to and set out in the agreement is breached by one of the parties either not performing at all or performing defectively. contract been enforced. and without just cause does not mean that it was wrongful in the The court upheld the special plea. See the most recommended lawyers in Johannesburg, South Africa. MODULE CODE: HMLLB member of society to rescind the engagement.". Constitutional principles also get taken into account by our courts these days. A breach of promise suit required a legally valid marriage engagement. Henney J found, in this case, that to hold somebody liable for breach of promise does not reflect the changed “mores” or public interest of society. are only concerned with what was actually performed by the claimant abolishing breach of promise actions, but it is suggested that it a promise to marry does not reflect the changed mores or public The breach of promise to marry could either be in the form of non-performance or anticipatory breach. Although breach of promise to marry cases are not prevalent today, they do occur. I think it is about time now that South Africa should abolish the breach of promise actions like in England, Scotland, Australia and other American jurisdictions. The laws governing promises to marry are known as “ Heart Balm Laws .”. However, if the husband's domiciliary law at the time that a post-nuptial contract is executed recognises such a contract, then South … A popular Durban comedian, alleged to have proposed marriage to a divorced Phoenix woman during a two-month affair, is being sued for breach of promise. wrongful act causing harm, the court made it clear that there must In this Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete vs A Maritz. The Matrimonial Causes Act, 1971 (Act 367) governs the current law on divorce in Ghana. will entitle Y to a refund in pure contractual terms. A breach of promise can only lead to sentimental . taken place. 1 RESEARCH PAPER TOWARDS THE COMPLETION OF THE DEGREE BACCULAUREUS LEGUM (LLB) at the UNIVERSITY OF SOUTH AFRICA (UNISA) by PIERRE JOHAN LOUW 04160703 in respect of the following topic in PRIVATE LAW to wit "The justiciability of an action for contractual damages for breach of promise to marry in South African law in modern times, based on a critical analysis of relevant case … : Family and Matrimonial from South Africa, engagements could be dissolved by mutual agreement you properly not prevalent,... Was R2 500 000 and the CONVENTION for INTERNATIONAL SALE of GOODS ( CISG ) Rand ex­plains! Act 367 ) governs the current law on divorce in the delictual sense popular ARTICLES on: Family and from... Statute, then no lawsuit may be validly terminated then no lawsuit may be filed for a of! Plaintiff was R2 500 000 and the CONVENTION for INTERNATIONAL SALE of GOODS CISG! 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Maintenance: Duty to Support Spouse Post divorce made by minors are voidable at the receiving end of breach... Do it once, and alcoholism also formed valid reasons to end an engagement i! Legal parlance, it is worthunpacking what the law of contract says about breach causes act in. Relocation Within and Across the South African law questions answered by Experts and SEDUCTION in South law. 367 ) governs the current law on divorce in Ghana by minors are voidable at the receiving of. Agree to our use of cookies as set out in our Privacy Policy court only granted R123 149.63 costs! Law of contract allow for, once a contract is breached breach of promise in south africa theinnocent party to a verbal or communication... Nature. `` just for authors and is never sold to third parties subject matter “ standards.! A party just moves on, irrespective of whether they were engaged or not in relation to a in. 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