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Study unit 2: The engagement - Coggle Diagram
Study unit 2: The engagement
Introduction
Legal consequences:
Damages for unlawful termination based on breach of promise
No prescribed formalities:
Do not need a ring or to get down on one knee
Don't have to make an announcement or have a party
An engagement is an agreement to enter into marriage or civil partnership
Termination of the engagement
Lawful termination
Conclusion of marriage
Death of one of the parties
Agreement between the parties to terminate engagement (mutual)
Withdrawal of parental (ministerial) consent
Unilateral lawful (justified) termination
=> Iusta causa - justified reason / cause
=> Objective test
=> Krull v Sangerhaus 1980 (4) SA 299 (E)
a. Parents argument over the ceremony
b. Court said it was not a iusta causa
Unilateral wrongful termination
General - breach of promise
Termination without the existence of a iusta causa
Innocent party can withdraw and claim damages and / or solatium (satisfaction)
Examples:
=> The denial of the existence of an engagement
=> The unreasonable refusal of one of the parties to enter into the marriage on the basis on which the parties have agreed
=> The conclusion of an engagement with a third party
=> Having intimate or sexual relationships with someone else
Definition and legal nature of the engagement
Cannot enforce it with an order for specific performance
A unique type of contract:
Sui generis
Van Jaarsveld v Bridges - suggested that instead of it being an enforcement agreement, but (SCA) rather a period in which to decide whether or not to get married.
An agreement between two people, to enter into marriage / civil partnership on a particular or at a determinable time
Parties may enter into an engagement subject to certain conditions (3 types of contracts):
If the parties include an impossible condition - engagement valid and the condition ignored
If the parties include an unlawful condition - engagement valid and the condition read over
If the parties have a condition that is in direct conflict with the nature of the marriage - engagement valid
Legal requirements
Legally and factually legitimate (lawfulness / competency or capacity to marry each other)
Parties are to be unmarried - void ad intium
=> Friedman v Harris 1928 CPD 43
=> Jajbhay v Cassim 1938 AD 537
Cannot be related to each other within prohibited degrees of affinity
Consensus
Must be in agreement on the marriage
Can be excluded on the basis of:
Mistake / error
Material mistake error - iustus error (essential or non-essential)
Non-essential error makes the engagement - valid
Error in nomine - fake name
Lie about family / work
Essential error will make the engagement - void
Error in persona - identity of the person / think it is someone else
Error in negotio - type of actio you are entering into (material mistake)
Error qualitatis - Error in a persons characteristics. Depends if it is essential or not (such as blonde hair)
Misrepresentation
Non-essential - valid
Essential - Voidable at choice of the mislead party
Has become sterile or impotent
Suffers from a serious hereditary disease
Is mentally ill
Incurable disease
HIV positive
Previous lifestyle
Social standing
Previous sexual relationships
Is an alcoholic or drug addict
One party through an act or omission creates a false impression or fails to remove a false impression
Misrepresentation is judged iusta causa - just cause for the rumination of the engagement
Iusta causa is a fact or circumstance disclosed which would jeopardise the chances of a happy marriage
Smit v Jooste 1900
A man concealed that he got drunk at a dance and started swearing at the other dancers
She found out and wanted to terminate
Can she terminate?
Misrepresentation - this was a part of his character
Schnaar v Jansen 1924
Her brother was in jail for housebreaking and theft
Her uncle married someone from another race
Her uncle murdered his wife
She concealed all these details about her family
The court said it wasn't iusta causa (not essential misrepresentation - he should have found out)
Theleman v Von Geyso 1957
Husband got engaged to the lady
Both of them thought that she was pregnant and so decided to get engaged
Wasn't a misrepresentation on her part
At a later stage she found out the she was not pregnant
This is a iusta causa because they would have gotten married for the wrong reasons id she was no longer pregnant
Duress (pressure)
More of an element of violence than undue influence
Physical violence
Voidable at the choice of the innocent party
Undue influence
Emotional blackmail
Voidable at the choice of the innocent party
Smith v Smith 1948 (4) SA 67 (N)
Fiance and his father physically abused the lady and forced her to marry him
Possibility of performance
Consequences
The claim for damages for breach of contract / contractual damages
Specific performance would be forcing a person to get married (in terms of other contracts but can't be done with a breach of engagement)
Sui generis calculation
Real damages: monetary loss due to expenses incurred for the proposed marriage (actual expenses)
=> Basis: series of express or tacit agreements between parties
=> If you advise your client, you can claim for real damages, however we have to prove that there was a series of express or tacit agreements between the two of you who is going to be paying for what
Prospective / future losses
=> SCA in Van Jaarsveld v Bridges: claim for prospective losses is no longer possible
=> Cannot claim for prospective losses
=> Positive interests (starting point)
=> Tempered by certain factors including expected length of marriage, age of plaintiff and possibility of remarriage
=> Guggenheim v Rosenbaum 1961 (4) SA 21 (W)
a. Claim was possible in this case
b. Prospective losses were awarded but on a very vague basis
c. All of the prospective losses that the lady would have been entitled to if they had married (estate and maintenance)
=> Sepheri v Scanlan 2008 (1) SA 322 (C)
a. Breach of engagement
b. Decided in the WCC high court
c. Davis J - factual background: Engaged in 1998, she followed him and was left hanging for quite some time. Parties eventually broke up
d. In the case Davis J said he felt uncomfortable with prospective losses concept (first question to it)
e. Awarded prospective losses although he did not agree with the original claim.
=> Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA)
a. There was a claim for damages
b. She had a list of prior marriages
c. She got engaged to van Jaarsveld, eventually the marriage never happened because he broke it off over SMS
d. She claimed for real losses for moving down, she did renovations to the house and claimed for prospective losses for all the concerts she wasn't going to be able to perform at
e. Court referred to Sepheri v Scanlan and decided they needed to revaluate the claim.
f. It is illogical to attach more consequences to an engagement than a marriage
=> Cloete v Martitz 2013 (5) SA 448 (WCC)
a. 24 April 2013
b. She claimed amongst other things, the financial loss from the benefits of marriage, would have been married in community of property and would have shared property and so she claimed for her "share" of the marriage
c. Maritz raised a special plea, he was not prepared to defend it and used van Jaarsveld v Bridges to state that they had abolished the claim for prospective losses.
d. Van Jaarsveld did not abolish the claim and therefore Maritz couldn't use a special plea (the SCA only gave guidance)
e. Claim for prospective losses doesn't exist in South Africa anymore
f. Based on the SCA's remarks and therefore may filter down to the other courts which may result in the same decision
g. Claim for real damages still exists
Satisfaction for infringement of personality rights (law of delict)
Some factors to be taken into account
=> Manner of breach of promise
=> Motives for breach of promise
=> Social status of parties
=> Previous life experiences
Iniuria = infringement upon a person's good name, dignity or honour
Must prove intent in order to succeed with the actio iniurium = animus iniuriandi
Quantum? It's up to the courts discretion - how much should be awarded
Davel v Swanepoel 1954 (1) SA 3131 (A)
=> He continuously promised to get married but it never actually happened
=> In the end the engagement was broken off
=> Court found that this was an inuiria
=> She was awarded with a sum of money for the injustice
Guggenheim v Rosenbaum 1961
=> He just denied ever being engaged
=> Inuiria was also found and satisfaction was also awarded
Sepheri v Scanlan 2008
=> How did the breakup happen?
=> Judge felt the trauma was worsened by her bringing the case forward
=> Court did not award delictual damages; said the damages happened during the court case and not before
Van Jaarsdveld v Bridges 2010
=> He broke it off on an SMS
=> The breakup was also reported in the media
=> The court dismissed the claim because it was a common form of communication for them
=> He apologized in the SMS, therefore intention was not there
=> Delictual claim not awarded for inuiria
=> This claim still exists but needs to prove intent.
Return of gifts
Arrhae sponsalitiae; sponsalitia lagitas = Gifts in anticipation of the marriage
Ring, car, house, dishwasher
If one party is "guilty" the innocent party can keep/claim back gift
Return of gifts to both parties if both are "innocent"
Return as agreement
Small social gifts:
Teddy bear, chocolates, flowers
No return for either innocent or guilty party