An engagement is a verbal pactum de contrahendo (a contact to contact or a contingent contract) and there are no legal requirements for a marriage proposal to constitute a valid engagement. When a couple gets engaged, the parties enter into a contract to enter into a marriage contract and to prepare for that marriage and the fanfare preceding it.
A contract is a legal undertaking to perform certain obligations. It gives rise to duties and rights and performance is the key element of a contact. When one party breaches the contract, the other party to the contract might suffer losses due to non-performance of the contractual obligations.
An automatic remedy for breach of contract under common law is a claim for damages against the breaching party. To successfully claim damages, the plaintiff must prove: the existence of a contract; that the contract was breached by the defendant; and that the plaintiff suffered damage (loss) because of the defendant’s breach. The plaintiff has the following types of damages at their disposal: Compensatory damages are damages paid to directly compensate the aggrieved party for the value of the performance that was expected. Incidental Damages are damages incurred by the nonbreaching party in attempting to minimize or remedy the loss preceding the breach. Consequential damages (special damages) are damages which do not necessarily, but directly, naturally, foreseeably, and proximately result from the breach of contract. Nominal damages are damages paid in instances where there has been a breach of contract, but the aggrieved party has really suffered no loss. Punitive damages are damages awarded for the purpose of punishing a defendant in a civil action, in which criminal penalties are unavailable and mainly used as a deterrence. The purpose of remedies in South African contract law is compensation and not punishment, therefore punitive damages are inapplicable.
In Nlapho v Zimu, the court held that a breach of promise to marry brings about two causes of action: actio iniuriarum whereby the jilted innocent party is entitled to sentimental damages if the repudiation of the engagement contract was contumelious and the ‘guilty’ party acted wrongfully in the delictual sense and amini iniuriandi and/or an action for breach of contract. It is important to note that an engagement may be cancelled without financial consequences if there is a just cause for the cancellation. Just cause is defined as any event or condition or actions of the other party which would jeopardize a healthy and happy marriage, and which would induce any reasonable person to terminate the engagement.
The purpose of an award of damages for breach of contract is to put the injured party in the position they would have been in had the contract been performed. The law is noticeably clear on the type of damages that can be claimed in the event of breach of contract. However, the application of the remedies available due to a breach of promise to marry needs much interpretation; especially in light of the fact that a breach of contract by one party discharges the other party of his duty to perform under the contract and that a breach of promise to marry might encompass actual losses and prospective losses. A claim for damages may also be coupled with a claim for specific performance of the contract. In the case of breach of promise to marry however, it would be a gross miscarriage of justice for the court to order the defendant to marry the plaintiff against their will.
In Van Jaarsveld v Bridges, the court assessed the impact of awarding damages for breach of contract and held that it is difficult to justify the commercialisation of an engagement in view of the fact that a marriage does not give rise to a commercial or rigidly contractual relationship. The court noted that an engagement is more of an unenforceable pactum de contrahendo providing a spatium deliberandi, time to consider the marriage offer, get to know each other better and decide whether or not to finally get married. The court further held that no claim in South African law exists for breach of promise to marry other than actual expenses incurred in the planning and preparation of the marriage.
In Roman Law, a betrothal did not give rise to a contract and any gifts exchanged in lieu of the anticipated marriage could be returned. At most, the revocation of the offer and acceptance of a marriage caused scandal for the families but did not give rise to legal consequences. The action for breach of promise to marry flows from English law and was particularly laid down in the 1962 case of Mary Holcroft v Dickenson where a full bench of three judges developed the common law and held that the plaintiff was entitled to 100 pounds for breach of promise to marry. The principle was popularly developed in the 19th century and was largely based on the ideology of femininity and the virtue of a woman in a time where marriage was the sole goal and desire of women.
As of 1970, English law has abolished the action for breach of promise to marry for the main reason that actions based on breach of promise to marry open a back channel for ‘gold-digging’ claims. In Cloete v A Maritz the court alluded to the fact that a marriage built on the foundation of circumventing an action of breach of promise to marry is doomed for failure before the ink even lands on the paper and that the principle that a party to an engagement agreement can successfully claim prospective losses on the basis of breach of contract no longer forms part of our law. Family life is an important societal factor, and the law should not countenance legal actions which might exact people into concluding contracts of such immense significance against their express intentions.
It can be accepted that the boni mores of society and public interest no longer requires that a party who has breached a promise to marry be held accountable to the same measure prescribed by contractual damages as if a breach of promise to marry was tantamount to a divorce. When people promise to marry each other, they cannot be said to have contemplated that a unilateral termination of their engagement will have financial consequences similar to those of a divorce.
Compensatory damages, incidental damages and consequential damages for actual loss suffered in preparation of the anticipated marriage can be fathomed. It is the prospective/ future loss and noneconomic damages which are cumbersome to prove and assess in monetary value. Noneconomic damages include mental distress, pain and suffering, loss of companionship, loss of enjoyment of life, damage to reputation and contumelia. Our courts are only concerned with the actual performance rendered by the aggrieved party in consideration and preparation for the intended marriage. Our courts are unenthusiastic about probing into the issue of damages which may arise in the future (prospective loss) and at present, a party cannot claim for prospective losses as a result of a breach of a promise to marry.
Actions for breach of promise to marry invoke societal pity which might lead to judicial officers exerting their own moral indignation in awarding damages for hurt feelings (umgowo), leading to unfounded actions, coercive extra judicial settlements, and excessive judgements. Such claims are based on commercial entitlement for prospective losses and a voracious need for vengeance. Our courts should not involve themselves with speculation on such a grand scale by permitting claims for prospective losses. Entertaining breach of promise to marry claims might open the floodgates for delictual damages for pain, loss and suffering from jilted and grieving lovers. The courts are not to be used to settle issues precipitated by dating and courtship. Our courts should not be treated as referees in such games of love.
While damages for prospective losses are clearly out of the question, it is important to note that an aggrieved party might successfully claim delictual damages if the termination of the engagement was contumelious and one might also recover actual losses incurred in the preparation for the marriage.
South African law is yet to expressly abolish the stand-alone action of breach of promise to marry but it is recommended that it should. At best the action for breach of promise to marry is merely a heartbalm legal action. The actual loss suffered in preparation of the marriage can be adequately covered by restitution and the emotional suffering and contumelia damages can be claimed as a delictual claim.
“We must not promise what we ought not, lest we be called on to perform what we cannot.“
MUSINGS OF CHIEF JUSTICE CHIVENGE 
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