Engagements
There are no formalities required for the conclusion of a valid engagement: an official ceremony is not necessary nor is the giving of a ring. An engagement ceremony and a ring are merely social usages. If proof of an engagement is required there are other events which may provide the necessary proof, such as a newspaper announcement or an engagement party.
The parties may conclude the engagement contract in writing, orally or even tacitly.
An engagement is an obligatory (mandatory) contract which is governed by the principles of the law of contract. However, an engagement contract is in many respects sui generis (of its own kind) which differs from other contracts in a number of ways.
These differences relate to:
(a) who may enter into an engagement;
(b) the rescission (breaking) of the engagement and
(c) the recovery of damages for breach of contract.
What is an engagement?
An engagement is a legal agreement between a man and a woman to marry each other on a specific or determinable date. The engaged couple may set a specific date in the future for the marriage, or simply agree to marry at some future date.
In a civil marriage the engagement is between the two parties to the marriage.
In the case of an African customary marriage, it is often said that the period after the negotiations that precede the marriage, are similar to an engagement. However, there is an important difference between this period and the engagement period which precedes a civil marriage. In the African customary marriage the agreement is between family groups which include the individual man and woman who are entering into the customary marriage.
The legal requirements which apply to engagements
There are specific legal requirements which apply to engagements. These are that:
The parties must agree to the engagement
If there is no agreement between the parties there is no engagement. One party cannot be coerced or forced into entering into an engagement. This aspect is discussed further below.
The parties must have capacity to act
A person who wishes to enter into an engagement must have the capacity to act. This means the person must understand the nature and consequence of his or her actions.
A person who is incapable of understanding the nature and consequence of the action cannot enter into a valid engagement contract. For example, persons who are intoxicated or under the influence of drugs at the time of the marriage do not have legal capacity.
Who may enter into an engagement?
Not every person who may enter into a contract has the capacity to enter into a contract of engagement. The law provides as follows:
(a) Persons who have full capacity to act (majors) may enter into an engagement contract
(b) Minors who are above the age of puberty (14 years for males and 12 years for females) have limited capacity to act. Minors require the consent of their parents or guardians to conclude a binding contract of engagement.
(c) Minors who have been declared majors under the age of Majority act 57 of 1972 do not require consent and may become engaged.
(d) Similarly, minors who are under 21, who are widowed or divorced, may conclude a valid engagement contract. These persons do not require consent to enter into engagements.
The following persons may not enter into an engagement:
(a) Persons below the age of puberty are totally incompetent to enter into contracts of engagement. This means that boys under the age of 14 years of age and girls under the age of 12 are incompetent to enter into an engagement.
(b) Further, a girl under the age of 15 years and a boy under 18 years of age. must obtain the written consent of the Minister of Home Affairs to marry (section 26 of the Marriage Act 25 of 1961). Such a minor’s engagement is conditional upon the minister’s consent even where the minor in question has obtained parental consent to the engagement. Obligations under the engagement become enforceable only once the Minister has consented to the engagement
The engagement must be lawful.
The requirement of lawfulness implies that both parties to the engagement must be permitted by law to marry each other.
A person may enter into one engagement only. Western society prohibits polygamous marriages (where the husband has more than one wife) and there is thus no point in a man or woman becoming engaged to two persons. Polygamous marriages and engagements in African Customary Law are discussed below.
Persons who are related to each other within the prohibited degrees of blood relationship may not marry.
For example, siblings (a brother and sister) may not marry each other or become engaged to each other. The prohibited degrees of blood relationship are discussed below under marriage requirements.
The termination of an engagement
A contract of engagement comes to an end in the same way as other contracts. An engagement contract may be terminated by:
(a) marriage. The contract is automatically terminated by marriage. This amounts to the fulfilment of the contract
(b) mutual agreement to terminate the engagement
(c) the death of either of either or both of the engaged persons
(d) withdrawal of parental consent where one of the parties is a minor
(e) any unilateral and justified termination of the contract which is based on sound reason.
It has been said that engagement contracts differ from other contracts. In other contracts one party is generally entitled to claim specific performance from the other party. Where, for example, A contracts to buy a car from B for a certain sum of money and B breaches the contract, A can demand specific performance from B. A can demand delivery of the vehicle (if he has paid the purchase price).
However, a party to an engagement contract cannot demand that an engagement contract be upheld and that the marriage. It is unlawful to force any person to marry another. This means that if an engagement contract is broken by one party, the other party to the engagement contract cannot claim specific performance from the other (cannot insist that the marriage go ahead.)
When may an engagement be broken?
In the case of a breach of the engagement contract, the innocent party may recover all presents given to the guilty party, except out and out gifts.
The innocent party may retain all the gifts given to her by the guilty party.
If one of the parties to the engagement dies, the question whether the gifts must be returned will depend on the nature of the gift and the parties’ intentions at the time the gifts were given.
Breach of contract
An engagement is a legal agreement which has legal consequences. If one of the parties to the engagement fails without good cause to proceed with the marriage, that person has breached the contract. Consequently, where an engagement is broken by one party without good reason, the other party can take legal action and claim damages on the ground of breach of contract.
An engagement may beterminated unilaterally (by one party) for good reason (justa causa).
It is difficult to define what constitutes good cause for the unilateral termination of the engagement contract. As a general rule just cause is any event which takes place or which comes to light during the engagement, which would render the prospect of a successful marriage impossible or unlikely.
This would include the situation where, for example, one party to the engagement contract terminates the marriage without good cause, or becomes engaged or married to another person, has sexual intercourse with another person, or acts in any way contrary to the obligations created by the contract, and so on.
The just cause (sound reason) for the unilateral termination of the engagement must not be trivial (insignificant or petty). It must be of a serious nature: and must warrant the withdrawal from the pledge to marry. For example, a person who has breached such a contract to marry cannot rely on the argument that the parents and other persons involved in the wedding arrangements disagree about arrangements and have become involved in a dispute. The court has found that such an argument is trivial and far too frivolous a reason to justify the negation or cancellation of the contract.
Damages for breach of contract
An innocent party may withdraw from the engagement (rescission/cancellation of the contract) and apply for payment of damages for breach of contract. The damages arise from the unlawful termination of the engagement (breach of promise). This action is for compensation for patrimonial loss the injured person has suffered. Patrimonial loss is a loss which diminishes one’s estate.
Damages for patrimonial loss are calculated on the basis of positive interest. In other words, the innocent party is awarded damages which will place him in the financial position he would have been in if the contract had been performed.
If this principle is applied to engagement contracts this would mean that the innocent party would have to be placed in the financial position he or she would have been in if the marriage had taken place. This would include compensation for prospective loss, that is benefits which he or she may have acquired during the marriage.
The courts have also awarded damages for actual proven patrimonial loss, such as disbursements made before the marriage. This would include a trousseau and travelling expenses and the bride’s dress for example. For example, in Guggenheim v Rosenbaum 1961 (4) SA 21 (W) the court awarded compensation to the innocent party for prospective loss and for expenses which had been incurred in the preparation for the marriage. In this way the court placed the innocent party in the financial position he or she would have been in if the contract of engagement had never been entered into.
The innocent party may also claim damages for solatium (compensation for injured feelings or satisfaction for personality infringement). These damages do not relate to the diminishing of one’s estate. It is a loss which affects your person or your personality.
The innocent party cannot apply for enforcement of the engagement contract.
The termination of an engagement without good cause does not necessarily involve the infringement of the other person’s dignity, honour or feeling. The innocent party must prove the guilty party breached the contract wrongfully and must prove that the action injured him or her and that the guilty party intended to do so.
The amount which is payable for satisfaction lies in the discretion of the court. The court will look at the social position of the injured person, the extent of the hurt, and so on.
There is no clarity at present with regard to the legal position of awards of compensation for breach of promise. It appears as if the court will award compensation on the basis of the individual circumstances of the case.
Courtecy of: law24.com
