BREACH OF PROMISE: THE IMPORTANCE OF ITS ABOLISHMENT

A BREACH OF PROMISE INTRODUCTION:

Since the inception of humanity, we have always expressed our commitment and love to another stranger through an expression called “ Marriage”. Well it used to be an expression until it was commercial and turned into a business transaction.

But thats besides the point.

The sentence “ Will you marry me” or “Will you be my wife” is a promise that extends beyond showing commitment to the person you claim to love, its the beginning of rights, responsibilities and obligation between the two parties who have consented to be bound to each other. But does all that justify someone being punished because time has led to them feeling differently about the person. We are humans, constantly evolving, constantly learning and continuously understanding ourselves better with every experience. Is it right to be subjected to the hammer of the law due to the effects of going through a natural human experience-Feeling different. With a Breach of Promise claim, that is what happens. A person who fell out of love would be subjected to the strictures of the law.

Punishing people for being people is a recipe for disaster and the start of a society which fears being people. Only robots are capable to 100 % of the time compute a decision and stick to that decision. We as humans, no matter how much we may want too, we are too flawed to never have regret, guilt or just second guessing. The Breach of Promise claim, premised on the idea that people must be robots. Not explicitly, but its precept is fundamentally that of anti-second guessing, anti regret, anti feeling different. A claim founded on breach of promise is both anti-human and anti-love. Love cannot be forced when it isn't there, and being punished for that is questionable. Which is why the common law claim of Breach of promise had to be abolished, or atleast an aspect of it as its expectation from members of society is impractical and contrary to the nature of the species.

In this writing, we will be looking at the Abolishment of the Common law Breach of Promise claim and its importance socially, legally and economically.

BREACH OF PROMISE: WHAT BREACH?

A Breach of Promise definition widely accepted by the court is outlined as “ an unjustifiable repudiation of an agreement to marry entered into by the parties wherein the parties agree to be married at a determined future date or within a reasonable period of time.

Courts have recognised that with such an agreement, an unavoidable contractual relationship is created wherein its breach has the potential of resulting in both contractual and delictual damages being claim.

Is it justified?

Now myself personally, I opine that technicising a human relationship, by using technical legal jargon to govern that relationship does not align with nature itself. Human relations, especially romantic human relations, have the characteristics of unpredictable fluctuation due to the unpredictable nature of Love which drives parties to enter into such agreements.

One of the elements of Breach of promise is “ repudiation of the agreement without just cause”. Just cause, as per various court judgments, has been interpreted to mean an “ event, condition or action of another person which would jeopardise a long and happy marriage and which any right minded person of society would rescind”.

On the first read, this made sense to me. I thought to myself, “yes indeed, ending things with someone without just cause is wrong, it should be punishable through incurring contractual or delictual action against you”. But then i thought to myself, is Love always justified or does it sometimes happen without just reason or logic.

I speak from personal experience, love has had a tendency of engulfing me without just reason or cause. Just looking at this person infront of you, would leave you with a deep sense of care and passion towards them and not know why.

Therefore i put forward that the inverse should also be accepted as possible, that people are capable of not loving a person anymore without just cause or reason. Waking and not feeling the same way anymore about the person who has been claimed to be loved for the last 5 years should not be viewed as against public policy. Therefore the element of “ Just cause” is redundant within the context of romantic human relationship, because it does not take into consideration that such relationships most times, do not make sense. Argo my obiter that you cannot technise human relationship through legal jargon.

Breach of promise is a law that seeks to govern an ungovernable aspect of human interaction- Which is LOVE.

Therefore, i completely share the sentiments as espoused in various court judgment wherein abolishment of such a remedy was supported.

COURT JUDGEMENTS ON BREACH OF PROMISE:

Lets quickly look at court judgments that dealt with Breach of Promise.

First we have the 2008 case of SEPHERI V SCANLAN. In the high court , the plaintiff who claimed contractual damages as a result of Breach of Promise, went in court and said “ i am entitled to what would have been mine had the marriage in community went through.” -

Not in those per se but her causes of action was founded on the idea that she is entitled to what she would have received had the promise to marry been fulfiled

I was completely shocked when I discovered that the court granted prospective contractual damages in favour of the plaintiff in this case, based on the reasons that the partners have been staying together for several years, they pooled their income together and jointly tackled their household expenses.

I understood the words used by the court in this judgments, but i didnt agree with them. the natural thing to do as people in one space is to ensure the survival of the people in that space( or Tribe- as it would be called in ancient times). For such actions and conditions to be considered grounds for supporting an argument that “ am entitled to what i would have received had the promise to marry been fulfilled” is counter-intuitive to the species natural predeliction for community, because it says people must be rewarded for doing what is essential to ensuring the survival of the tribe. The reward is the survival of the tribe.

Although i find the judgment problematic, the court did provide an obiter wherein they acknowledged the understanding of why some courts frown on such an action. The court acknowledged that such actions can “open doors for gold digger”- the court did not specifically say that, but acknowledge that reason as provided in Sinclair’s writing titled The Law of Marriage (Cape Town: Juta 1996) at 313

VAN JAARSVELD V BRIDGES 2010:

Here's an example where we see someone being potentially persecuted due to not feeling the same way.

In Van Jaarsveld & Bridges, we will call them X and Y. What happened is that X and Y where together. Things moving well to the point where X felt Y is wife to be to which he proceeded to propose marriage to Y. Y was ecstatic, and rightfully so, she began making wedding arrangements and sending out invitation. Love was in the air.

A change happened, X began to not feel the same way about Y and also his mother not accepting Y added fuel to X’s doubts about marriage. X then did what any reasonable, right minded member of society would have done, He texted Y these words “ The marriage is no longer happening, i longer feel the same way about you, sorry felicia”. Maby the text was not that of a right minded member of our society, but rescinding on the marriage when having such feelings is justified. Not nice, but justified.

Y read this text, rage came over her like the wind in autumn, and began looking for ways to get her justice. Indeed she found a potential idea that could help her achieve her goal and Action for Breach of Promise was the solution.

Y claimed for damages in excess of 1 million, that's the cost of a brick of gold. This claim espoused actual losses, prospective loss(mostly prospective loss) and sentimental damages.

The judgment came back and awarded actual damages, which included the money Y spent preparing for the wedding and relocating to the location of where her fiancé was residing.

I get it, but i dont agree with this award, because no gun was held in anyone’s face for wedding cost to be expanded and relocations to be done. We choose our choices but never our consequences, and its not rights for any awards to be given as a result of consequences due to choices taken by a right-minded adult person.

Although i don't agree with the award, i do agree with the courts disdain for the claim of prospective loss alleged to be as a result of a breach of promise. When i read, “ the failure not to honour a marriage promise resulting in contractual damages does not reflect the mores of our current society”. The court “ate” with that as it pointed out the nonsensical nature of upholding a remedy which enables rewards based on data which is highly speculative. “ The court cannot involve itself with speculation of such scales, wherein they permit claims for prospective losses”. This made me understand the “Abolishment of the Breach of Promise remedy”. In that, this remedy’s abolishment is in regard to when its used to claim for prospective loss. A claim for breach of promise is abolished in the event wherein the plaintiff brings it forth to claim Prospective loss based on what they would have received had the marriage not been rescinded.

For the purpose of bringing finality to this, the next two cases being 3. Cleote v Maritz & 4. Nhlapo v Zimu will not be touched on in detail because they say the same things as Van Jaarsveld. In that yes, you can claim for sentimental damages ( where the calling of the engagements was done cruelly to the point where it brought great damage to your dignity) and can claim for actual loss, like wedding preparation or relocation cost. You can never claim for prospective losses due to our changes in morals turning such claims to not to one that does not align with our Boni Mores.

CONCLUSION

As we both discovered through looking at the Abolishment of Breach of Promise herein, we saw that only part of the action of breach of promise is abolished, where breach of promise is claimed in order to be awarded prospective loss.

Such abolishment is essential to ensuring that a society is made up of relationships founded on love and not fear. Legally, such an abolishment is important because it distances the law against involving itself in speculative discourses which are borderline delusional. Economically, such abolishment is important because it leaves the door closed for “gold diggers” and also avoids a situation wherein someone is paying on account of a non-existent reality that could or could not potentially happen.

I am completely for the abolishment of prospective losses claims in Breach of Promise actions.