The engagement – is a contract between a man and woman to marry each other on a
specific or determinable date. A valid engagement is not a prerequisite for a valid civil
marriage. No special requirements are required for the conclusion of a engagement,
which means that the contract can be concluded orally or in writing. Mistakes – error in
persona – the woman or man for instance thinks he or she is marry x while she is actually
marrying y. This means that there is a case of mistaken identity regarding the person to
whom a party becomes engage to.
Erro in negotia – one of the parties could consider that promise as merely an informal
agreement or a joke. These material mistakes results in the engagement being void and
thus neither party can claim for damages on the basis of breach of promise.
Misrepresentation occurs when one of the parties to the contract makes a false
representation to the other concerning facts which had the other known the truth, would
have resulted in the contract not being concluded at all or else concluded on different
terms.
Capacity to act – both parties to the engagement must have the capacity to act. A minor
must obtain his or her parents (both parents unless courts has awarded sole guardianship
to one parent)/legal guardian if both parents deceased permission to become engaged,
ratification is also sufficient. Minor below 18 who has already been married and now
divorced does not require parental consent. Emancipated minor has to obtain parental
consent. Mentally ill person does not have the capacity to become engagement as long as
the illness lasts.
Lawfulness – parties must be unmarried. A promise by a married person to marry after
obtaining a divorce is void – contra bonos mores – against good morals.
Grounds for termination –
couples marriage
the death of either of the parties
a mutual agreement to terminate the engagement
withdrawal of parental consent where one person is a minor
a unilateral and justified termination based on sound reason – justa causa – is best
expressed as a fact or an occurrence which comes about after the engagement has been
entered into and which according to human experience seriously jeopardizes the chances
of a happy and lasting marriage. Examples are – becoming sterile, impotent, developing
serious heredity disease, committing a serious crime, becoming mentally ill, becoming an
alcoholic. Examples of circumstances that do not qualify as justa causa are –
disagreements between parents and parties regarding wedding arrangements, one party no
longer loves the other.
breach of promise – the innocent party is allowed to withdraw from the engagement if the
other party commits to breach of promise.
,Damages for breach of promise – general rule is that damages for patrimonial loss are
calculated on the basis of positive interest. This means that the innocent party is entitled
to damages which would place him or her in the position he or she would have been in
had the contract been fulfilled.
PRESCRIBED CASE - SCHNAAR V JANSEN – breach of promise to marry – justa
causa. The plaintiff was engaged to the defendant. After they got engaged the defendant
discovered that one of the plaintiff’s uncle had a black wife, that another had been hanged
for his wife’s murder and that her brother had been convicted of housebreaking and theft.
The defendant thereupon repudiated the engagement. The plaintiff sued him for breach of
promise. The defendant admitted breach of promise but averred that the abovementioned
circumstances rendered it impossible for him to comply with his promise to marry the
plaintiff and that repudiation was justified. The plaintiff accepted to the defendant’s plea
and the exception was allowed as was the claim. The court held that these circumstances
did not justify unilateral repudiation of the engagement. Judge President Dove-Wilson
said “ if a man engages himself to a woman without having satisfied himself as to her
relatives he takes the risk of their being unsatisfactory” Some authors accept this decision
whilst some do not. Van Heerden suggests that this decision is incorrect as “an
engagement to marry is a contract of utmost good faith and a party with a skeleton in
his/her cupboard is obliged to disclose it”
PRESCRIBED CASE - GUGGENHEIM V ROSENBAUM – breach of promise to
marry – damages – In 1943 the plaintiff was divorced at Reno in the American state of
Nevada. At that stage she was domiciled in the state of New York. While she resided in
New York she met the defendant, who was on a visit to the United State. The defendant
domiciled in S.A. They fell in love and in New York the defendant asked the plaintiff to
marry him. It was agreed that the marriage would take place in S.A. The plaintiff gave up
her flat, sold her motor vehicle and some of her furniture had the rest of her furniture put
into storage and gave up her employment. When she arrived in Cape Town the defendant
met her and repeated his promise to marry her. The parties went to Johannesburg, where
the defendant refused to marry the plaintiff. She sued him for damages for breach of
promise. In reply he pleaded 2 special defenses:
1. That the plaintiff’s divorce could not be recognized in terms of S.A law since she
and her husband were divorced in a state in which they were not domiciled. The
defendants promise to marry the plaintiff was therefore void as being contra
bonos more on the ground that the plaintiff was still legally married.
2. That the law of the state of New York had to be applied to the matter. New York
did not allow the plaintiff to recover damages for breach of promise and the
plaintiff’s claim for damages should therefore be rejected.
,The defenses were rejected and the plaintiffs claim for damages was allowed.
Plaintiffs claim for damages was decided as follows:
• Loss on sale of motor vehicle – court rejected plaintiffs claim as she could not
prove that the vehicle was sold below its market value.
• Cost of packing and storing belongings – plaintiff proved these expenses – R187
• Loss of earnings – court found that plaintiff was supported by defendant for a
period of time and that she then found employment in JHB and plaintiff could not
prove that this income was lower than her previous one. Her claim was therefore
rejected.
• Loss of apartment – court rejected this claim as she could not prove that she
would pay a higher rental for another apartment should she decided to return to
New York
• Cost of returning to New York – rejected
• Prospective loss – the probability would have been that parties would have
married anc excluding the community of property and profit and loss. In the
absence of proof to the contrary it must be assumed against the plaintiff that no
marriage settlement would have been made on her in the anc. Taking into
consideration that the defendant is a man of affluence and occupies a position of
life that is superior to her own, she would have therefore derived material benefits
from their marriage – R2000 was approved.
• Delictual damages – R500 awarded.
Return of the engagement gifts:
If parties mutually agree to terminate engagement or due to justa cuasa, all gifts including
rings must be returned by both parties. Gifts already used up need not be.
Breach of promise – the innocent party is entitled to the sponsalitia and arrhae
sponsalitiae (gifts made to show seriousness of the promise to marry – engagement ring)
he or she gave to the guilty party. Small unconditional gifts may be retained by the guilty
party. The innocent party may retain the arrhae sponsalitiae and the sponsalitiae largitas
(small gifts made with view of marriage) he or she received. If the innocent party claims
damages the value of the gifts retained must be set off against claim for damages.
ENGAGEMENT:
A valid engagement is not a prerequisite for a valid civil marriage. If one of the parties is
under the impression that’s it’s a joke no engagement comes into place. If one of the
parties has promised something like if he gets an increase in salary then he will marry the
engagement is still valid. When a party to the engagement refuses to proceed with the
marriage, the engagement ring that was given to this party must be returned.
, BREACH OF PROMISE:
Examples are – when one of the parties terminates the engagement after he realizes he
does not love the other. When one of the parties continuously refuses to agree to a
wedding date, when one of the parties enters into a marriage with another.
Ex parte Dow – it was held that a marriage concluded in a garden is perfectly valid
Putative marriages – ought to come into existence even if all the formalities were not
complied with at the solemisation of the marriage. A court cannot declare a putative
marriage valid. The children born from a putative marriage are legitimate.
Davel v swanepoel – the defendant kept the plaintiff in s trying and secretly married a
third party without first terminating the engagement
Smit v Jacobs – the defendant secretly entered into a marriage with third party without
terminating the engagement first
Guggenheim v Rosenbaum – the defendant father having concluded an engagement
denied all knowledge of its existence.
LEGAL REQUIREMENTS FOR THE CONCLUSION OF A VALID CIVIL
MARRIAGE:
Marriage is traditionally defined as the legally recognized life long voluntary union
between two parties to the exclusion of all others.
Capacity to act – mentally ill persons - if they enter into marriage the moment this occurs
marriage is void. Infant (children below age of 7) do not have the capacity to act.
Prodigals (a person with normal mental ability but who is unable of managing his or her
own affairs because he or she squanders his or her assets in an irresponsible reckless way
as a result of some defect in his or her power of judgment of character) may marry
without consents
A marriage is not valid unless it is lawful for he parties to marry
Ex parte Dow – applicant applied for an order declaring this marriage null and void
because the wedding had taken place, in conflict with section 29(2) of the marriage act, in
front of a garden. Marriage was declared valid.
Consensus – forms the basis of and is fundamental requirement for entering into a
marriage. Both parties must have the will to marry each other. Error in persona and error
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