Article by listed attorney: Fawzia Khan
Becoming engaged is seen as a milestone in the life of a couple who want to demonstrate their intention of getting married to each other in the foreseeable future. Once a proposal of marriage was made and then accepted, that was all that was needed for a valid engagement. It was the promise to marry the other person. No other formalities were necessary for a valid engagement.
If one of the parties decided to call off the engagement, it was seen as a breach of promise and carried with it potential claims for litigation. Breach of promise claims were based on common law, which are those laws which have been created over time but are not enacted by any legislation. Rather its existence is created through the society’s norms and values and gains ground when the courts make decisions on it (referred to as ‘stare decisis’), which become judicial precedents for other courts to follow.
The common law therefore evolves with the changing mores and norms of society. Previously if a person broke off an engagement, she (the aggrieved person was almost always female) would have been entitled to claim for breach of promise based on delict and contract. The delictual claim would be for the damages suffered, (contumelia or sentimental damages claim which loosely describes the indignity or hurt endured because of the break up of the engagement) and the contractual claim which was the actual financial loss suffered in preparation towards the wedding and expenses incurred.
The leading case of Van Jaarsveld v Bridges in 2010 saw a significant shift in how our courts now view these breach of promise actions when the Supreme Court of Appeal dismissed the woman’s claim for sentimental damages and said that the time has come for our common law to be developed to take into account that the changing values of our society. Harms J said “I do believe the time has arrived to recognise that engagements are outdated and do not recognize the mores of our time, and that public policy considerations require that our courts must reassess the law relating to breach of promise”.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.
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