Contrary to popular belief, an engagement is not a mere social agreement. South African common law recognises an engagement (or promise to marry) as a contract from which some contractual remedies may flow. The engagement contract is, however, a contract sui generis (of its own kind). Therefore, it gives rise to certain contractual remedies. If a party to an engagement refuses to marry or unduly delays the marriage, their conduct may constitute a breach of promise.
Lawful termination of an engagement
When an engagement is terminated lawfully no claim for damages will arise. An engagement can be terminated lawfully through the death of either party, mutual agreement to terminate, withdrawal of parental or ministerial consent (in the case of minors) and unilateral lawful repudiation. Unilateral lawful repudiation allows an innocent party to withdraw from the engagement if there is iusta causa (just cause). Just cause is present when there is a sound reason, which renders the prospect of a happy marriage unlikely, such as material misrepresentation or wrongful conduct.
Unlawful termination and its consequences
Unlawful termination is termination without just cause. A party who terminates an engagement unlawfully may be held liable for damages (based on the law of contract) and satisfaction (based on the law of delict).
What are the contractual damages for unlawful termination?
The wronged party will have a claim for breach of promise, which gives rise to claims for real damages and claims for prospective loss. A claim for real damages allows the wronged party to claim all reasonable expenses that they have incurred as a result of the proposed marriage. The Supreme Court of Appeal (SCA) has, however, stated in an obiter remark in Van Jaarsveld v Bridges 2010 4 SA 558 (SCA) (herein after referred to as “Van Jaarsveld”) that the basis for such expenses “do not flow from the breach of promise per se but from a number of express or tacit agreements reached between the parties”. It still remains that the wronged party is entitled to such a claim.
Claims for prospective loss are more controversial. The starting point for such a claim is positive interesse, meaning that the wronged party must be placed in the position they would have been in, had the contractual obligation been fulfilled. When this principle is applied in an unqualified way the wronged party may have a claim for half of the estate of the defendant and maintenance that would have been received during the marriage if they are able to prove that the marriage would have been in community of property. This is extremely speculative, and the court will not make such an award.
Therefore, positive interesse is tempered by factors such as the expected length of the marriage, the age of the wronged party and the possibility of remarriage.
The SCA is critical of these claims. In the case of Sepheri v Scanlan 2008 1 SA 322 (C) (herein after referred to as “Sepheri”) the court questioned the constitutionality of these claims and whether it is rational for an engagement to have consequences seemingly more severe than divorce seeing as the fault system is still applied. In Van Jaarsveld the court mentioned in its obiter that the calculation of prospective losses is “not capable of ascertainment…remote and speculative”. The SCA also confirmed in Van Jaarsveld that “the current approach to engagements does not reflect the current boni mores or public policy considerations based on the values of our Constitution”.
The Effect of Cloete v Maritz on Future Contractual Claims for Breach of Promise
In Cloete v Maritz 2013 5 SA 448 (WCC) (herein after referred to as “Cloete”) the plaintiff inter alia claimed damages reflecting her prospective loss. The defendant raised a special plea in which he claimed that this is no longer a valid cause of action in South Africa. The High Court found the previously mentioned obiter in Van Jaarsveld to be highly persuasive (although it was not binding on the court) and agreed that the Constitution requires a reconsideration of claims for prospective loss in light of the public’s prevailing mores. The special plea was accordingly upheld, and the court held that claims for prospective loss as a contractual remedy are no longer permissible under South African law. This new approach is in line with the notion in Van Jaarsveld that “an engagement is… more of an unenforceable pactum de contrahendo providing a spatium deliberandi – a time to get to know each other better and to decide whether or not to marry”.
The decision in Cloete v Maritz is not currently binding on courts for future cases of breach of promise, because it is merely a High Court decision and must be confirmed. However, the decision remains strongly persuasive alongside the obiter remarks of the of SCA in Van Jaarsveld. It is therefore unlikely that courts will allow claims for prospective loss in the future, especially considering Section 39(2) read with Section 173 of the Constitution and their mero motu duty to develop the common law which is in this case clearly outdated.
References:
- Cloete v Maritz 2013 5 SA 448 (WCC).
- Constitution of the Republic of South Africa, 1996.
- Sepheri v Scanlan 2008 1 SA 322 (C).
- Thabane T “A Contract of Engagement as an Unenforceable Pactum de Contrahendo under South African Law: Distilling Lessons for Lesotho Courts” (2018) 32 Speculum Juris 54-65.
- Van Heerden B, A Skelton & Z du Toit (eds) Family Law in South Africa 2 ed (2021), Cape Town: Oxford University Press Southern Africa (Pty) Ltd.
- Van Jaarsveld v Bridges 2010 4 SA 558 (SCA).
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.