Breach of promise
Encyclopedia
Breach of promise is a former common law
tort
.
From at least medieval times until the early 20th century, a man's promise of engagement
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, as explained below)—and unless an actual dowry
of money or property had changed hands, 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 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 Many have repealed all laws regarding such eventualities; whereas in others the statute allowing such an action may technically remain on the books but the action has become very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.
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, 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" (a harbinger of the further societal changes which were to eventually undermine breach of promise). 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.
, 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 his Pickwick Papers, or Gilbert and Sullivan
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 intimate personal concerns, something which was strongly repugnant to the family feeling of the period (especially where young women were concerned).
In the US, breach of promise laws were repealed or limited beginning in 1935. As a result, expensive diamond engagement ring
s, previously uncommon, began to become commonplace, and formed a sort of financial security for the woman.
England and Wales undertook legal reforms in 1970 that generally made property disputes related to engagements be handled like property disputes between married couples.
France nominally did not permit breach of promise actions, holding that marriage cannot be freely entered into if the engagement is legally binding. However, any party may sue for losses as a result of improper behavior by an engaged person.
After World War II, German, Spanish, and Italian law allowed for the recovery of actual damages incurred as a result of the failed engagement.
Whilst 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 the sufficiently serious consequences in light of the specific circumstances, for instance in Cheung Suk Man v So Shek Keung [1965] HKLR 485.
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 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. Christmas present
s are generally taken to be absolute gifts, and thus cannot be recovered if the engagement dissolves, but engagement ring
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.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
.
From at least medieval times until the early 20th century, a man's promise of engagement
Engagement
An engagement or betrothal is a promise to marry, and also the period of time between proposal and marriage which may be lengthy or trivial. During this period, a couple is said to be betrothed, affianced, engaged to be married, or simply engaged...
to marry a woman was considered, in many jurisdictions, a legally binding contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
. 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, as explained below)—and unless an actual dowry
Dowry
A dowry is the money, goods, or estate that a woman brings forth to the marriage. It contrasts with bride price, which is paid to the bride's parents, and dower, which is property settled on the bride herself by the groom at the time of marriage. The same culture may simultaneously practice both...
of money or property had changed hands, 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 morals have led to the decline of this sort of action. Most jurisdictions, at least in the English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
-speaking, common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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.
Cause of action
A breach of promise suit required a legally valid marriage engagement. Generally, promises made by—but not to—people who had not reached the age of majorityAge of majority
The age of majority is the threshold of adulthood as it is conceptualized in law. It is the chronological moment when minors cease to legally be considered children and assume control over their persons, actions, and decisions, thereby terminating the legal control and legal responsibilities of...
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
Consanguinity refers to the property of being from the same kinship as another person. In that respect, consanguinity is the quality of being descended from the same ancestor as another person...
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, 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
Virginity
Virginity refers to the state of a person who has never engaged in sexual intercourse. There are cultural and religious traditions which place special value and significance on this state, especially in the case of unmarried females, associated with notions of personal purity, honor and worth...
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" (a harbinger of the further societal changes which were to eventually undermine breach of promise). 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.
In literature
The social damage from receiving attention from a man is discussed in a passage from the 1801 novel Belinda by Maria EdgeworthMaria Edgeworth
Maria Edgeworth was a prolific Anglo-Irish writer 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 novel in Europe...
, 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":
- "…after a certain time—after the world suspects that two people are engaged to each other, it is scarcely possible for the woman to recede: when they come within a certain distance, they are pressed to unite, by the irresistible force of external circumstances. A woman is too often reduced to this dilemma: either she must marry a man she does not love, or she must be blamed by the world—either she must sacrifice a portion of her reputation, or the whole of her happiness.… A young woman is not in this respect allowed sufficient time for freedom of deliberation."
Breach-of-promise actions were part of the standard stock-in-trade of comic writers of the 19th century (such as Charles Dickens
Charles Dickens
Charles John Huffam Dickens was an English novelist, generally considered the greatest of the Victorian period. Dickens enjoyed a wider popularity and fame than had any previous author during his lifetime, and he remains popular, having been responsible for some of English literature's most iconic...
in his Pickwick Papers, or Gilbert and Sullivan
Gilbert and Sullivan
Gilbert and Sullivan refers to the Victorian-era theatrical partnership of the librettist W. S. Gilbert and the composer Arthur Sullivan . The two men collaborated on fourteen comic operas between 1871 and 1896, of which H.M.S...
in Trial by Jury
Trial by Jury
Trial by Jury is a comic opera in one act, with music by Arthur Sullivan and libretto by W. S. Gilbert. It was first produced on 25 March 1875, at London's Royalty Theatre, where it initially ran for 131 performances and was considered a hit, receiving critical praise and outrunning its...
), 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 intimate personal concerns, something which was strongly repugnant to the family feeling of the period (especially where young women were concerned).
Laws in different countries
In Scots law before 1812, damages were limited only to actual financial losses.In the US, breach of promise laws were repealed or limited beginning in 1935. As a result, expensive diamond engagement ring
Engagement ring
An engagement ring is a ring indicating that the person wearing it is engaged to be married, especially in Western cultures. In the United Kingdom, Ireland and North America, engagement rings are traditionally worn only by women, and rings can feature diamonds or other gemstones. In other cultures...
s, previously uncommon, began to become commonplace, and formed a sort of financial security for the woman.
England and Wales undertook legal reforms in 1970 that generally made property disputes related to engagements be handled like property disputes between married couples.
France nominally did not permit breach of promise actions, holding that marriage cannot be freely entered into if the engagement is legally binding. However, any party may sue for losses as a result of improper behavior by an engaged person.
After World War II, German, Spanish, and Italian law allowed for the recovery of actual damages incurred as a result of the failed engagement.
Whilst 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 the sufficiently serious consequences in light of the specific circumstances, for instance in Cheung Suk Man v So Shek Keung [1965] HKLR 485.
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 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. Christmas present
Christmas Present
- References :*...
s are generally taken to be absolute gifts, and thus cannot be recovered if the engagement dissolves, but engagement ring
Engagement ring
An engagement ring is a ring indicating that the person wearing it is engaged to be married, especially in Western cultures. In the United Kingdom, Ireland and North America, engagement rings are traditionally worn only by women, and rings can feature diamonds or other gemstones. In other cultures...
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.