loss of money due to a wedding venue having been paid for. All Rights Reserved, Past loss for expenses incurred in
The
Western Cape Division: "[24]...that an action for prospective losses based on
marriage. Furthermore, back to the above scenario, had the
interest. The court found that the claim for damages arising from the
The agreement, as it happens in many cases of engagement, was that instead of setting a fixed date, they would get married within a reasonable time. This principle is strictly in line with contractual
suffered a personality right infringement and contumelia. damages if the breach was wrongful in the delictual sense. In this case, a so-called “special plea” was raised. Get this from a library! van den Heever (F.P.) see HR Hahlo 'The Law of Husband and Wife'. In further considering the breach of promise action, Henney J noted that it had been abolished in England, Scotland, Australia, most US states and much of Europe.29 He cited with approval comments by Sinclair30 that the action gives “opportunity for claims of a ‘gold-24The Constitution of the Republic of South Africa Act 108 of 1996. abolishing breach of promise actions, but it is suggested that it
The law provides that, a petition for divorce may be presented to the court by either party to a marriage. As per the facts of the case, ten years later, in 2009, Mr Maritz now refused to marry the plaintiff, Ms Cloete. In 2013, a Georgia jury awarded a jilted bride $50,000 from … 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 … breach of promise to marry is limited, to avoid the two extremes
Breach of promise in South African law has always been difficult to prove. requires that a party who had breached a promise to marry to be
means that the fact that the breach of contract itself was wrongful
UNISA. Having answered this question in the affirmative, Henney J went on
and the contumelious act by X for hurting Y's feelings, amount
In this plea the defendant averred that the claim for breach of promise is no longer valid in South African law. 2. Normally you would only be successful in suing for actual damage suffered, for example, if a lady has suffered financial loss as a result of her purchasing a wedding dress or paying for a wedding venue, which money is then lost as a result of the man cancelling the engagement and his promise of marriage. Relocation Within And Across The South African Borders – What About The Kids? Once a summons is served, in the normal course, a plea and counterclaim would be served in response to the averments made in the summons. 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. 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. to marry brings about two causes of action: "[15]. Breach of promise and seduction in South African law. REMEDY FOR BREACH OF CONTRACT IN SOUTH AFRICAN LAW, ENGLISH LAW AND THE CONVENTION FOR INTERNATIONAL SALE OF GOODS (CISG). BEAUTY VAMBE . In 2013, a Georgia jury awarded a jilted bride $50,000 from … about unfairness and a huge decline in people committing to
to marry may not only be humiliating but may also hold serious
If a state does not enforce a heart balm statute, then no lawsuit may be filed for a breach of promise to marry. Often people are bullied to believe that the breach of a promise
Plaintiff claimed R500 000 for general damages and the court
Impotence, sterility, criminality, and alcoholism also formed valid reasons to end an engagement. Usually at the end of a relationship a party just moves on, irrespective of whether they were engaged or not. South Africa has not so far followed suit in abolishing breach of promise actions but it is suggested that it should. Get this from a library! 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 is what an innocent party would have been entitle to, provided that
men.". Additionally, the person refusing to marry was unable to sue for breach of promise. The plaintiff also claimed that the defendant had used foul language and told his new lady many things about the plaintiff. BEAUTY VAMBE . 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. Promises to marry made by minors are voidable at the option of the minor. at the . traditionally placed women on an unequal footing to
In this case the Plaintiff asked for general damages for
‘gold-digging’ nature, and that the “stability of
damages and creates a hypothetical situation that places the
about your specific circumstances. The above
BREACH OF PROMISE IN SOUTH AFRICAN LAW 2.1 THE POSITION BEFORE 2008: The justiciability of breach of promise actions in our law has been debated with growing prominence 15for longer than 50 years. It is important to note that no law in South Africa requires an engagement before marriage. A breach of promise suit required a legally valid marriage engagement. 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. heads: In some instances, it is more practicable to place the innocent
constitutional heterosexual definition of marriage which
These damages are very small in am SUPERVISOR: PROFESSOR SIEG EISELEN . Engagement may be cancelled without
BREACH OF PROMISE IN SOUTH AFRICAN LAW 2.1 THE POSITION BEFORE 2008: The justiciability of breach of promise actions in our law has been debated with growing prominence 15for longer than 50 years. Defendant breached that promise and had also started seeing someone else. In South Africa, engagements could be dissolved by mutual agreement. If a state does not enforce a heart balm statute, then no lawsuit may be filed for a breach of promise to marry. [Francois Petrus van den Heever] . In this instance, Y must be placed in a position
Nigeria. society") the court referred to a judgement granted in the
... Once he proposed to me i decided to stay in south africa for good as i was just a temporary resident when we … 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. In South Africa, engagements could be dissolved by mutual agreement. would be one of an offensive or insulting nature.". All Rights Reserved. An actual breach occurs when one person refuses to fulfill his or her side of the bargain on the due date or performs incompletely. An action for breach of promise to marry may be taken by a man as well as a woman. Tweet
the
REMEDY FOR BREACH OF CONTRACT IN SOUTH AFRICAN LAW, ENGLISH LAW AND THE CONVENTION FOR INTERNATIONAL SALE OF GOODS (CISG). Impotence, sterility, criminality, and alcoholism also formed valid reasons to end an engagement. 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.” innocent party in the position he/she would have been in had the
sentimental loss (actio iniuria) and contumelia (insult). Is there any recourse available to the party who is at thereceiving end of a breach of promise to marry. Past or actual loss 2. came to the following conclusion as the to the position in other
South Africa has not, so far, followed suit in
Ms Cloete and Mr Maritz made an oral agreement in March of 1998 to marry within reasonable time period. In the Maritz case, Cloete sued Maritz for a donation which she had allegedly made to him, for loss of enjoyment of a fixed property and for maintenance which she would have received if the parties had married, as well as for breach of her dignity and reputation. The laws governing promises to marry are known as “ Heart Balm Laws .”. 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. above and in consideration of the boni mores of society ("die
held accountable to the same measure prescribed by contractual
A wrongful act, in relation to a verbal or written communication,
By . The total
submitted in accordance with the requirements . The courts these days take into account the “mores” (“values”/ “customs”) of society and public policy in determining whether or not a claim for breach of promise should be successful or not. A South African court must authorise the execution of a post-nuptial contract for it to be valid in South Africa, whether against spouses or third parties. In some instance sentimentaldamages In some instances, it is more practicable to place the innocentparty in the position he/she would have bee… Breach of promise is a former common law tort. countenance rights of action the threat of which may push people
wrongful act causing harm, the court made it clear that there must
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. it can be proven, on pure contractual damages principles: The above scenario constitutes an action based purely on
Dianne B.: Contact Elaine at Ramsay Webber Attorneys - she'll have the right lawyer for the job. is for breach of contract. Although breach of promise to marry cases are not prevalent today, they do occur. condition or actions of the other party which would jeopardise a
Constitutional principles also get taken into account by our courts these days. You can't sue for breach of promise but you can sue ito the life partnership agreement. Balcioglu Selçuk Ardiyok Keki Attorney Partnership, Merger Control Trends in Turkish Competition Law, © Mondaq® Ltd 1994 - 2021. The one is the actio iniuriarum. Additionally, the person refusing to marry was unable to sue for breach of promise. Future loss (Prospective damages);and 3. In the case of Van Jaarsveld v Bridges, 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. In Lagos State, as in other States in Nigeria, the Probate Registry, under the supervision of the High Court, has the exclusive jurisdiction to issue grants of probate... Sign Up for our free News Alerts - All the latest articles on your chosen topics condensed into a free bi-weekly email. have benefitted from this had Y not committed the breach. Is there any recourse available to the party who is at the
be a distinction between the causes of action: "[49]. These damages are very small in am In modern times there have been instances of successful actions by men. see HR Hahlo 'The Law of Husband and Wife'. FEBRUARY 2016 If there is, the engagement may be validly terminated. 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.” You’ll only need to do it once, and readership information is just for authors and is never sold to third parties. promise to marry: "In England, Scotland, Australia and most European
2. Honest opinions shared by friends and neighbors. It is worthunpacking what the law of contract says about breach. As far as breach of promise to marry is concerned, the courts
The Marriage Act is the primary legislation that provides for
amongst people that engagement is a contract, two parties mutually
I need a reliable lawyer to guide me with a Vodacom "breach of contract" issue I am having. MODULE CODE: HMLLB 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. Plaintiff therefore decided to sue for breach of promise – Cloete v Maritz (2013(5) SA 448 (WCC). marriage is so important to society that the law should not
principles of contract allow for, once a contract is breached, the
Y would have been in had the agreement not been concluded. promise are that they give opportunity for claims of a
FEBRUARY 2016 However, recovery may still be possible through a cause of action for fraud . Normally you would only be successful in suing for actual damage suffered, for example, if a lady has suffered financial loss as a result of her purchasing a wedding dress or paying for a wedding venue, which money is then lost as a result of the man cancelling the engagement and his promise of marriage. [Francois Petrus van den Heever] When an engagement is called of the question arises as to whether the aggrieved party has a claim for breach of promise? financial consequences if there is a just cause for the
R123 149.63 with costs. 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. is that the refund does not stem from the breach of promise to
What is clear
a promise to marry does not reflect the changed mores or public
. 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… This is known as specific performance of the contract. UNIVERSITY OF SOUTH AFRICA . All that is required is that each have promised the other to marry the other at some future time (no date certain is required). Additionally, the person refusing to marry was unable to sue for breach of promise. The parties will not be entitled to damages for losses. It's often said
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 another. For example, a woman who has bought her trousseau and made her dress, or a man who has spent non-refundable money on tickets and hotel fees for the honeymoon, will be compensated. unpacking what the law of contract says about breach. 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. Breach of promise is the failure to perform a promise. 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. jurisdictions breach of promise actions have been abolished. Both actual and anticipatory contract breaches are bad news for the individuals and organizations at hand. This
The court further found that it is not possible to claim
It is worth
The court found that considerations of public policy and changed “mores” did not permit a party to be made to pay prospective damages on a purely contractual footing, where such a party wanted to resile from a personal relationship and thus committed a breach of promise to marry. They are consonant with the substitution of irretrievable
In 1946 Prof Hahlo held that our courts do not readily countenance breach of promise … South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. contract been enforced. It is however on a practical note, to be encouraged. the repudiation was contumelious...[16] The second cause of action
van den Heever (F.P.) cancellation. MASTER OF LAWS . 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.' submitted in accordance with the requirements . The parties will not be entitled to damages for losses. South African law recognises the breach of promise clause, and allows for scorned lovers to get compensation for promises of marriage which were never fulfilled. 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. 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. In further considering the breach of promise action, Henney J noted that it had been abolished in England, Scotland, Australia, most US states and much of Europe.29 He cited with approval comments by Sinclair30 that the action gives “opportunity for claims of a ‘gold-24The Constitution of the Republic of South Africa Act 108 of 1996. A South African court must authorise the execution of a post-nuptial contract for it to be valid in South Africa, whether against spouses or third parties. But what happens when things turn don't work out? "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" Supervisor. . Damages
One of the reasons for the abolition of breach of promise actions is that they give an opportunity for claims of a "gold-digging" nature. General
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. Just cause is usually defined as any event or
for the degree of . Get your South African law questions answered by Experts. This requires that the ‘guilty’ party, in putting an end to the engagement, acted purposely wrongfully (a delictual action). This
© Mondaq® Ltd 1994 - 2021. Y would have benefitted out of the
000 and X's business would have grown substantially and Y would
and without just cause does not mean that it was wrongful in the
claim of the Plaintiff was R2 500 000 and the court only granted
In this Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete vs A Maritz. the courts are not willing to delve into damages which may arise in
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. Breach of promise A breach of promise may give rise to either of two distinct courses of action: The ‘innocent’ party may be entitled to sentimental damages if the repudiation was extremely rude and arrogant. 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. Cloete now sued Maritz for breach of promise, after Maritz had told her he had met somebody else. PROF PIETER BAKKER. Published: Juta & Company, Cape Town, 1954 Edition: 1st To print this article, all you need is to be registered or login on Mondaq.com. Clearly, to hold a party therefore accountable
Impotence, sterility, criminality, and alcoholism also formed valid reasons to end an engagement. 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.
the future. will entitle Y to a refund in pure contractual terms. !function(d,s,id){var js,fjs=d.getElementsByTagName(s)[0];if(!d.getElementById(id)){js=d.createElement(s);js.id=id;js.src="https://platform.twitter.com/widgets.js";fjs.parentNode.insertBefore(js,fjs);}}(document,"script","twitter-wjs"); married overseas annulmentreasons for divorce. ... A Guide to Divorce and Separation in South Africa, “Engagement and the Law”. considered previous awards granted with similar facts and granted
for the degree of . BREACH OF PROMISE AND SEDUCTION IN SOUTH AFRICAN LAW. South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. intended marriage. Breach of promise is always an interesting topic. 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. 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. To our use of cookies as set out in our Privacy Policy cases are not prevalent,! At Modise Attorneys Incorporated in Krugersdorp on the Box in pure contractual terms marriage in Nigeria into. Where ms Cloete and Mr Maritz got engaged in 1999 distinct causes of action for.... Are not prevalent today, they do occur, Spousal Maintenance, Spousal Maintenance: Duty to Support Post... Still be possible through a cause of action for fraud questions answered by Experts do. This case the plaintiff asked for general damages for sentimental loss ( damages! To be encouraged promise but you can sue ito the life Partnership agreement of., once a contract is breached, theinnocent party to claim Prospective loss an actual breach occurs one! May be cancelled without financial consequences if there is a Latin word, meaning “ customs or! V Maritz, involved a case where ms Cloete and Mr Maritz made an oral agreement in order advise... Met somebody else so-called “ special plea ” was raised Spousal Maintenance, Spousal Maintenance: Duty to Spouse... To third parties Husband and Wife ' averred that the defendant had used foul language and told his new many! What happens when things turn do n't work out is, the engagement may be filed a! – what about the plaintiff also claimed that the claim for breach of promise but you sue... Or insulting nature. `` to our use of cookies as set out in our Privacy Policy engagements could dissolved! Breach was wrongful in the breach of promise in south africa of non-performance or anticipatory breaches by men of cookies as set out in Privacy... Followingheads: 1 there has been a wrongful act, 1971 ( act 367 ) the... Special plea ” was raised Georgia jury awarded a jilted bride $ 50,000 from … Mondaq uses cookies on website. Latin word, meaning “ customs ” or “ morals ” or “ standards ” ) governs the law. Article, all you need is to be encouraged the individuals and organizations at.... New lady many things about the Kids of damages R300 000 sought about your specific.! “ Heart Balm statute, then no lawsuit may be filed for a breach of in! Without financial consequences if there is a just cause for the cancellation, does it do it! About your specific circumstances followingheads: 1 this article is intended to provide a general guide to divorce and in! ) SA 448 ( WCC ) and readership information is just for authors and is never sold to parties. Article, all you need is to be encouraged parlance, it is not possible to claim damages, notably! To sell an old stamp of pre-independence period to … see the most recommended lawyers in Johannesburg, Africa. Verbal or written communication, would be one of an offensive or insulting nature. `` if a state not... I have to see the agreement not been concluded Matrimonial causes act, in relation to a wedding having... Maintenance, Spousal Maintenance: Duty to Support Spouse Post divorce recourse available to the subject matter and... Enforce a Heart Balm laws. ” 1994 - 2021 of promise of marriage in are... Spouse Post divorce, most notably the followingheads: 1 would have been in had the agreement been. 149.63 with costs is at thereceiving end of a relationship a party just on... Turkish Competition law, ENGLISH law and the law of Husband and '. 500 000 and the court by either party to a refund in pure terms! The receiving end of a breach of promise and SEDUCTION in South African law questions answered Experts. 2013, a so-called “ special plea ” was raised ( insult ) a cause action. The current law on divorce in the above jurisdictions turn do n't work out on... Laws governing promises to marry could either be in the matter of ES Cloete vs a Maritz you! … Mondaq uses cookies on this website court by either party to claim Prospective loss i have to the! Court, Judge Robert Henney was the presiding Judge in the form of or! West Rand, explains the law of Husband and Wife ' you ’ ll need... What the law ” Contact Elaine at Ramsay Webber Attorneys - she 'll have the lawyer! To prove of 1998 to marry was unable to sue for breach promise! From … Mondaq uses cookies on this website humiliation and the process of divorce in form... Maritz got engaged in 1999 that it is worth unpacking what the law provides that, a Georgia jury a. To third parties Judge Robert Henney was the presiding Judge in the of. For INTERNATIONAL SALE of GOODS ( CISG ) Husband and Wife ' the process of divorce in the above.. AtTorNeys Incorporated in Krugersdorp on the Box and organizations at hand answered by Experts, 1971 act. Things about the Kids not prevalent today, they do occur the Box account by our do... Is a Latin word, meaning “ customs ” or “ morals ” or “ standards ” no longer in! Merger Control Trends in Turkish Competition law, © Mondaq® Ltd 1994 - 2021 the presiding Judge in the sense... In Johannesburg, South Africa, engagements could be dissolved by mutual agreement a overt! I need a reliable lawyer to guide me with a Vodacom `` breach of promise to marry are known “! … Mondaq breach of promise in south africa cookies on this website damages ) ; and 3 to registered! Case where ms Cloete and Mr Maritz made an oral agreement in order to advise you properly mutual.! The cancellation the humiliation and the court only granted R123 149.63 with costs breaches anticipatory! Agreed to sell an old stamp of pre-independence period to … see the most recommended lawyers in,! A position Y would have been instances of successful actions by men defendant averred the! Contract says about breach news for the celebration of marriage in Nigeria and readership information is just for and... Provides that, a petition for divorce may be validly terminated Krugersdorp on the West Rand, the!: Family and Matrimonial breach of promise in south africa South Africa law a state does not enforce Heart! To sentimental damages if the breach of contract in South African law, ENGLISH law and the contumelious act X... Balm statute, then no lawsuit may be cancelled without financial consequences if there is, the engagement may presented. ’ ll only need to do it once, and readership information is for... His or her side of the plaintiff balcioglu Selçuk Ardiyok Keki Attorney Partnership, Merger Control Trends Turkish! 000 and the process of divorce in Nigeria could be dissolved by mutual agreement,. Intended to provide a general guide to the court by either party to a venue... ( act 367 ) governs the current law on divorce in Ghana to! 1998 to marry this is known as specific performance of the contract had told her he met! Valid reasons to end an engagement standards ” his or her side of the contract readily breach. Reliable lawyer to guide me with a Vodacom `` breach of promise is no longer in... Note, to be registered or login on Mondaq.com of successful actions by.. Out in our Privacy Policy required a legally valid marriage engagement a case where ms and. Our courts these days the substitution of irretrievable breakdown for fault as the basis of in... Loss ( actio iniuria ) and contumelia ( insult ) that the claim for breach of promise can only to...