TUTORIAL 2

AGREEMENT TO MARRY

1. Discuss the following:

a) The essential elements for a valid agreement to marry

1. Offer and acceptance

2. Consideration
-In an agreement to marry, if one party agrees, it is sufficient consideration but
sometimes the consideration is in the form of an act that needs to be done.
-Harvey v Johnston: The Plaintiff went to Ireland at the Defendant's request to
marry him. The defendant had promised to marry her within a reasonable time
of Plaintiff's arrival in Ireland. Defendant has broken his promise and Plaintiff
claims the damages. The court decided that Plaintiff's consideration here was
his act of going to Ireland. It is a good and acceptable consideration.

3. Capacity
1) Both parties must be single.
-Spiers v Hunt: The defendant is 70 years old. He promised the Plaintiff that
he would marry her if his wife died. Both Plaintiff and Defendant had
intercourse and several children were born. The defendant then refused to
marry. The court ruled that the agreement was invalid because the Defendant
was not single. The principle of the case is that a person who wants to get
married must be single.
-Exceptions:
• Plaintiff doesn’t know that Defendant had married.
-Shaw v Shaw: The Defendant that has married lied to the Plaintiff by
saying that his wife was dead. After Defendant died, Plaintiff only found
out about the real situation. The court agreed to award damages to the
Plaintiff.
• The agreement was made during the decree nisi and promised to marry
when the decree became absolute.
-Fender v St John: During the decree nisi, Defendant promised to marry
Plaintiff after the decree became absolute. Before the decree became
absolute, Defendant decided on her engagement. The court decided
that such an agreement to marry is valid because no public interest will
be affected if a man promises to marry a woman when the decree nisi
becomes absolute.
• If the man is allowed to marry more than one.
-Nafsiah v Abdul Majid: The court ruled that even if the Defendant
entered into an agreement to marry while married because he is a
Muslim, the agreement is valid.

2) The religion of both parties doesn’t have obstacles.

-Mary Joseph Arokiasamy: Hindu men and Christian women. The court
ruled that there is no obstacle that says a Hindu man cannot marry a
Christian woman.
 3) Age
• Section 11 of Contracts Act
• Fernandes v Gorsalves: The Court recognized that contracts to marry
are usually entered into in India by minors or between minors and
adults. Therefore, it may not have been the intention of the legislature
in India not to provide for remedies for minors. Therefore, the judge in
the Rajesuary case agreed with Fernandes and Khimji and agreed to
award damages to the Plaintiff.

b) The defences available to an action for a breach of promise to marry

1- Misrepresentation of facts
-Wharton v Lewis: Defendant raised a defense that he had misrepresented
Plaintiff. 1) Before the explanation, Defendant was told that Plaintiff would
inherit his father's property. However, the property is used to pay the debt to
the creditor. 2) Defendant also received information that Plaintiff did not behave
well while studying but later Defendant was told by Palintiff's father and brother
that the information was not true. Although the information is true. The court
ruled that Defendant was not misrepresented and damages were awarded to
Plaintiff.

2- Uberrimae Fide contract

-Beachey v Brown: a contract to marry is not an Uberrimae Fide contract which
is a contract that requires both parties to know all aspects of the agreement or
contract they are entering into. Therefore, Defendant cannot plead the
Uberrimae Fide contract as a defense unless the facts of the past touch the
basis of the agreement. Chief Justice Cockburn, when it is known that a woman
behaves in a discordant way that touches the foundation of a marriage contract
in that situation a man is released from his contract due to the necessity of the
case. If it concerns the Plaintiff's character or other personal attributes, the
court is not willing to dismiss the Plaintiff's compensation claim.

3- The Plaintiff's moral, physical and mental disability.

-Conditions: 1) The Plaintiff's incapacity occurs as soon as the agreement to
marry is made or 2) The Plaintiff's incapacity is known only after the agreement
to marry is made.
-Jefferson v Paskell: Defendant broke his promise to marry Plaintiff. He said
that the Plaintiff was suffering from TB and was still ill on the date of the
marriage. Plaintiff recovered after 6 months but Defendant still refused to marry
her. The Plaintiff has never had TB disease in fact. The defense given by
Defendant was that he truly and reasonably believed that Plaintiff was unfit to
marry. The Court ruled that the Defendant was unsuccessful. When Plaintiff
admitted that he was unwell on that date, he did not admit that he had been ill
for a long period of time. Therefore, if Defendant wants to use the excuse of
TB or other diseases, he must prove it. In this case, Defendant failed to prove.
 4- Self-incapacity
-Hall v Wright: The man (Defendant) said he had a serious illness. He was
warned by the doctor that pleasure in marriage would endanger his life.
Therefore, the chances of having children are slim. The court ruled that one
marriage does not necessarily mean producing children. The wife may want to
experience happiness side by side with her husband. She will also be able to
feel the status given to her by society as a wife by her husband, Not to be left
behind is her husband's property that she can get after her husband dies. So,
Defendant failed in the defense.

2. Explain the remedies for an action for breach of promise to marry. In assessing the
damages, discuss the factors the court consider. Refer to case law on this.

1) General damages
-is for abstract things such as feeling empty, disappointed and humiliated either because
of having fun with the Defendant or getting pregnant because of the Defendant and so on.
This compensation is given by the court and there is no specific way to calculate the
amount or value of compensation in money.
-Berry v Da Costa: Plaintiff moved out of his mother's house and lived with Defendant after
Defendant promised to marry her. The defendant then married someone else. The court
said that the fact that Plaintiff had lost the opportunity to marry a man of a higher status
than her and lost her dignity should be taken into account. Feelings of shame and
emptiness are also given attention by the court. The court awarded damages of 2500
pounds to the Plaintiff.

2) Special or monetary damages

-Given for matters of expenditure for wedding preparations where it can be calculated and
determined in money.

3) Rings and gifts given

-Cohen v Sellar: The man (plaintiff) was given damages because the woman (defendant)
broke her promise. Plaintiff asked for the ring that was given to Defendant. The judge held
that if a woman received a ring but refused to fulfil the conditions of the ring, she must
return the ring. If the man doesn't meet the conditions, he can't ask for the ring back. If
both parties agree to end the agreement, they should return the gifts that have been given
between them unless there is an agreement to the contrary. If one of the parties dies or
becomes incapacitated and that party is the gift giver, the gifts should be returned.

3.. John agreed to marry his neighbour Mary because his ailing father had expressed the
wish to have a grandchild before his death. One week before the wedding, John was
informed by Mary’s spinster grandaunt that Mary had an abortion while still in her teens
and that she could not longer bear children. John immediately broke off the engagement.
Mary wants to sue him for breach of promise. Advise her.
5. Sally gave up a lucrative and responsible position as executive assistant to the Managing
Director of a well-known newspaper company when she became engaged to the wealthy
heir of a tobacco company. A day before the large and expensive wedding her finance
stated that he would not marry her because “I lied when I told you I loved you. I just felt
sorry for you”. Sally wishes to recover for lost wages, the savings she had put into the
cost of the wedding reception, her extreme mental anguish which has left her with
neurosis, a large bill for psychiatric care, and an inability to handle other than routine
menial employment. Advise her.

Would your answer be different if

(a) Sally is a minor?

.

(b) Both parties are minors?

.

(c) The marriage was arranged by the families of both parties?

.