breach of promise in south africa

breach of promise in south africa

They can either be considered actual breaches or anticipatory breaches. It is seldom in my career that I have had a client adamant on persisting with pursuing a claim for breach of promise, unless actual expenses have been incurred, e.g. This requires that the ‘guilty’ party, in putting an end to the engagement, acted purposely wrongfully (a delictual action). commence by enquiring whether there has been a wrongful overt act. Breach of promise is always an interesting topic. financial consequences if there is a just cause for the Under Nevada law, this need not be in writing (as a prenuptial agreement is required to be), but may have been made orally by both parties. Professor Hutchison is an Advocate of the High Court of South Africa and the Head of Internal Research Unit at the law firm Edward Nathan Sonnenbergs Ing. South Africa has not, so far, followed suit in abolishing breach of promise actions, but it is suggested that it should…”3 The court further indicated that the morals of society no longer requires that a party who had breached a promise to marry to be held accountable to the same measure prescribed by contractual damages, the court Defendant breached that promise and had also started seeing someone else. Is there any recourse available to the party who is at thereceiving end of a breach of promise to marry. In 2013, a Georgia jury awarded a jilted bride $50,000 from … However, if the husband's domiciliary law at the time that a post-nuptial contract is executed recognises such a contract, then South … REMEDY FOR BREACH OF CONTRACT IN SOUTH AFRICAN LAW, ENGLISH LAW AND THE CONVENTION FOR INTERNATIONAL SALE OF GOODS (CISG). in consideration of the intended marriage, and It's clear that came to the following conclusion as the to the position in other Just cause is usually defined as any event or One of the reasons for the abolition of breach of promise actions is that they give an opportunity for claims of a "gold-digging" nature. [Francois Petrus van den Heever] referred to Sinclair Law of Marriage at 314 (fn 8) and Cloete now sued Maritz for breach of promise, after Maritz had told her he had met somebody else. topical issues for any person contemplating a divorce in Repudiation of a promise to marry is however no longer seen in the serious light that it was when marriage was regarded as the only proper course for all women and where breach of promise was likely to prejudice their reputation.” PROF PIETER BAKKER. Nigeria. Additionally, the person refusing to marry was unable to sue for breach of promise. “Mores” is a Latin word, meaning “customs” or “morals” or “standards”. The first is what can be referred to as a “normal” breach, where a term, agreed to and set out in the agreement is breached by one of the parties either not performing at all or performing defectively. for the degree of . Get this from a library! interest. countries with regards to a claim of damages arising from breach of In modern times there have been instances of successful actions by men. In Lagos State, as in other States in Nigeria, the Probate Registry, under the supervision of the High Court, has the exclusive jurisdiction to issue grants of probate... Sign Up for our free News Alerts - All the latest articles on your chosen topics condensed into a free bi-weekly email. You can't sue for breach of promise but you can sue ito the life partnership agreement. society") the court referred to a judgement granted in the General The Supreme Court of Appeal’s Judgment in Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA) , it was found that no claim in South African law exists other than the actual expenses incurred in the planning and preparation of the marriage. To base a claim for breach of promise to marry on a rigid contractual footing, in the sense that a claim for prospective losses would be permissible, was not a valid course of action, according to the court. The court further found that it is not possible to claim FEBRUARY 2016 Breach of promise; Termination by one party that is justified and based on sound reasons; It is important to establish whether there is a just cause for cancellation. it can be proven, on pure contractual damages principles: The above scenario constitutes an action based purely on the courts are not willing to delve into damages which may arise in principles of contract allow for, once a contract is breached, the wrongful act causing harm, the court made it clear that there must R123 149.63 with costs. These damages are very small in am The global COVID19-related death toll has breached the two million mark, with over 93.7 million infections recorded since the pandemic began in late December 2019. Henney J found, in this case, that to hold somebody liable for breach of promise does not reflect the changed “mores” or public interest of society. be a distinction between the causes of action: "[49]. 1 RESEARCH PAPER TOWARDS THE COMPLETION OF THE DEGREE BACCULAUREUS LEGUM (LLB) at the UNIVERSITY OF SOUTH AFRICA (UNISA) by PIERRE JOHAN LOUW 04160703 in respect of the following topic in PRIVATE LAW to wit "The justiciability of an action for contractual damages for breach of promise to marry in South African law in modern times, based on a critical analysis of relevant case … should...". delictual damages for hurting the feelings of Y. One of the reasons for the abolition of breach of promise actions is that they give an opportunity for claims of a "gold-digging" nature. Mondaq uses cookies on this website. The parties will not be entitled to damages for losses. and without just cause does not mean that it was wrongful in the Additionally, the person refusing to marry was unable to sue for breach of promise. The court further indicated that the morals of society no longer A popular Durban comedian, alleged to have proposed marriage to a divorced Phoenix woman during a two-month affair, is being sued for breach of promise. South Africa has not, so far, followed suit in abolishing breach of promise actions, but it is suggested that it should…”3 The court further indicated that the morals of society no longer requires that a party who had breached a promise to marry to be held accountable to the same measure prescribed by contractual damages, the court General damages for the humiliation Although breach of promise to marry cases are not prevalent today, they do occur. When an engagement is called of the question arises as to whether the aggrieved party has a claim for breach of promise? 2. condition or actions of the other party which would jeopardise a REMEDY FOR BREACH OF CONTRACT IN SOUTH AFRICAN LAW, ENGLISH LAW AND THE CONVENTION FOR INTERNATIONAL SALE OF GOODS (CISG). A wrongful act, in relation to a verbal or written communication, to marry may not only be humiliating but may also hold serious Y purchased all the goods and furniture in contemplation of the South Africa has not, so far, followed suit in BREACH OF PROMISE AND SEDUCTION IN SOUTH AFRICAN LAW. In this Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete vs A Maritz. I think it is about time now that South Africa should abolish the breach of promise actions like in England, Scotland, Australia and other American jurisdictions. van den Heever (F.P.) Usually at the end of a relationship a party just moves on, irrespective of whether they were engaged or not. and the contumelious act by X for hurting Y's feelings, amount Nearly 67 million recoveries have been registered. Specialist advice should be sought The Supreme Court of Appeal’s Judgment in Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA) , it was found that no claim in South African law exists other than the actual expenses incurred in the planning and preparation of the marriage. In this case, a so-called “special plea” was raised. Exit Right, Does It Do What It Says On The Box? FEBRUARY 2016 Breach of promise in South African law has always been difficult to prove. Promises to marry made by minors are voidable at the option of the minor. held accountable to the same measure prescribed by contractual men.". Terminating a contract may not always be the commercially sensible remedy for breach of contract as it may further delay the completion of the project, increase the project cost and even expose a contracting party to … Breach of promise is a former common law tort. for the degree of . Clearly, to hold a party therefore accountable Ronald & Bobroff, “The engagement”. Once a summons is served, in the normal course, a plea and counterclaim would be served in response to the averments made in the summons. In this plea the defendant averred that the claim for breach of promise is no longer valid in South African law. South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. The parties will not be entitled to damages for losses. He is also a professor in the Department of the University of Cape Town, where he was the general principles of contract law and the law regarding teaching session. Published: Juta & Company, Cape Town, 1954 Edition: 1st marry but stems from the agreement to purchase goods. Divorce Laws And Process Of Divorce In Nigeria, Grounds For Divorce In Ghana: - The Basics, The Process And Grounds For Annulment Of Marriage In Nigeria, Overview Of Statutory Marriage In Nigeria, The Emergence Of Family Offices In Mauritius, Understanding The Process Of Obtaining Grant Of Probate And Letters Of Administration At The Probate Registry (The Lagos Example), Child Custody (Primary Residence) Law South Africa. claimed on a breach of promise to marry is based on a pre – . traditionally placed women on an unequal footing to In further considering the breach of promise action, Henney J noted that it had been abolished in England, Scotland, Australia, most US states and much of Europe.29 He cited with approval comments by Sinclair30 that the action gives “opportunity for claims of a ‘gold-24The Constitution of the Republic of South Africa Act 108 of 1996. This principle is strictly in line with contractual As far as breach of promise to marry is concerned, the courts UNIVERSITY OF SOUTH AFRICA . marry.". regsopvattings van die gemeenskap" or "the morals of In 1946 Prof Hahlo held that our courts do not readily countenance breach of promise … (Bloomberg) -- South Africa’s volatile currency caught Citigroup Inc. in a wrong-way bet within a day.The New York-based lender recommended a … promise to marry, without looking at a factual scenario, the below When a court considers damages for breach of promise, it will take into account money spent by the innocent party in preparation for the marriage. In South Africa, engagements could be dissolved by mutual agreement. In this instance, Y must be placed in a position means that the fact that the breach of contract itself was wrongful is that the refund does not stem from the breach of promise to South African law recog­nises the breach of prom­ise clause, and al­lows for scorned lovers to get com­pen­sa­tion for prom­ises of mar­riage which were never ful­filled. guide to the subject matter. cancellation. Professor Hutchison is an Advocate of the High Court of South Africa and the Head of Internal Research Unit at the law firm Edward Nathan Sonnenbergs Ing. BREACH OF PROMISE AND SEDUCTION IN SOUTH AFRICAN LAW. are only concerned with what was actually performed by the claimant have benefitted from this had Y not committed the breach. In terms of South African law of contract, there are two types of breaches that can occur where a party defaults in terms of its obligations. Balcioglu Selçuk Ardiyok Keki Attorney Partnership, Merger Control Trends in Turkish Competition Law, © Mondaq® Ltd 1994 - 2021. However, recovery may still be possible through a cause of action for fraud . Woman gets damages after breach of promise to marry FRANCISTOWN: The High Court has ordered a man to pay P20,000 in damages for breaching a promise to marry his … BEAUTY VAMBE . The court found that the claim for damages arising from the South Africa has not so far followed suit in abolishing breach of promise actions but it is suggested that it should. South Africa has not so far followed suit in abolishing breach of promise actions but it is suggested that it should. The law provides that, a petition for divorce may be presented to the court by either party to a marriage. All Rights Reserved, Past loss for expenses incurred in The breach of promise to marry could either be in the form of non-performance or anticipatory breach. Get your South African law questions answered by Experts. In applying the above to a cause of action of breach of a However, if the husband's domiciliary law at the time that a post-nuptial contract is executed recognises such a contract, then South … amongst people that engagement is a contract, two parties mutually long and happy marriage and which can induce any right-minded Honest opinions shared by friends and neighbors. The Matrimonial Causes Act, 1971 (Act 367) governs the current law on divorce in Ghana. and other household goods). Normally you would only be successful in suing for actual damage suffered, for example, if a lady has suffered financial loss as a result of her purchasing a wedding dress or paying for a wedding venue, which money is then lost as a result of the man cancelling the engagement and his promise of marriage. "The justiciability of an action for contractual damages for breach of promise to marry in South African law in modern times, based on a critical analysis of relevant case law, with the view to determining whether the current legal position is sustainable or not" © Mondaq® Ltd 1994 - 2021. The divorce laws and the process of divorce in Nigeria are A popular Durban comedian, alleged to have proposed marriage to a divorced Phoenix woman during a two-month affair, is being sued for breach of promise. It is worth in the amount of R500 000. innocent party to claim damages, most notably the following Engagement may be cancelled without Often people are bullied to believe that the breach of a promise SUPERVISOR: PROFESSOR SIEG EISELEN . constitutional heterosexual definition of marriage which Published: Juta & Company, Cape Town, 1954 Edition: 1st Tweet In the case of a void marriage, the court decree is not important to bring the marriage to an end because the parties were never husband and wife in the face of the law in the first instance. South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. This heads: In some instances, it is more practicable to place the innocent I think it is about time now that South Africa should abolish the breach of promise actions like in England, Scotland, Australia and other American jurisdictions. He is also a professor in the Department of the University of Cape Town, where he was the general principles of contract law and the law regarding teaching session. In the Maritz case, Cloete sued Maritz for a donation which she had allegedly made to him, for loss of enjoyment of a fixed property and for maintenance which she would have received if the parties had married, as well as for breach of her dignity and reputation. on a rigid contractual footing where such a party fails to abide by loss of money due to a wedding venue having been paid for. !function(d,s,id){var js,fjs=d.getElementsByTagName(s)[0];if(!d.getElementById(id)){js=d.createElement(s);js.id=id;js.src="https://platform.twitter.com/widgets.js";fjs.parentNode.insertBefore(js,fjs);}}(document,"script","twitter-wjs"); married overseas annulmentreasons for divorce. In 2013, in the case of Cloete v Maritz where a woman sued her fiancé for breach of promise, the judge confirmed the Van Jaarsveld decision and said that whilst there would be a valid claim for actual expenses incurred due to the preparation for a wedding, no delictual claim was allowed for sentimental damages suffered. breakdown for fault as the basis of divorce in the above When an engagement is called of the question arises as to whether the aggrieved party has a claim for breach of promise? Damages requires that a party who had breached a promise to marry to be A South African court must authorise the execution of a post-nuptial contract for it to be valid in South Africa, whether against spouses or third parties. the repudiation was contumelious...[16] The second cause of action In this Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete vs A Maritz. Ms Cloete and Mr Maritz made an oral agreement in March of 1998 to marry within reasonable time period. It is worthunpacking what the law of contract says about breach. To attempt to avoid a claim for unfair dismissal,... by Raeesa Ebrahim Atkinson | Dec 8, 2020 | Commercial law, Contract Drafting, Publications. The plaintiff also claimed that the defendant had used foul language and told his new lady many things about the plaintiff. BREACH OF PROMISE IN SOUTH AFRICAN LAW 2.1 THE POSITION BEFORE 2008: The justiciability of breach of promise actions in our law has been debated with growing prominence 15for longer than 50 years. The laws governing promises to marry are known as “ Heart Balm Laws .”. Constitutional principles also get taken into account by our courts these days. With regards to the second cause of action relating to delict or sentimental loss (actio iniuria) and contumelia (insult). 1 RESEARCH PAPER TOWARDS THE COMPLETION OF THE DEGREE BACCULAUREUS LEGUM (LLB) at the UNIVERSITY OF SOUTH AFRICA (UNISA) by PIERRE JOHAN LOUW 04160703 in respect of the following topic in PRIVATE LAW to wit "The justiciability of an action for contractual damages for breach of promise to marry in South African law in modern times, based on a critical analysis of relevant case … As per the facts of the case, ten years later, in 2009, Mr Maritz now refused to marry the plaintiff, Ms Cloete. The laws governing promises to marry are known as “ Heart Balm Laws .”. countenance rights of action the threat of which may push people Is there any recourse available to the party who is at the considered previous awards granted with similar facts and granted MASTER OF LAWS . Repudiation of a promise to marry is however no longer seen in the serious light that it was when marriage was regarded as the only proper course for all women and where breach of promise was likely to prejudice their reputation.” ‘gold-digging’ nature, and that the “stability of Generalprinciples of contract allow for, once a contract is breached, theinnocent party to claim damages, most notably the followingheads: 1. Statistics have it that the number of ultra-high net worth individuals are increasing year on year adding to the equally increasing number of high-net-worth individuals – which means that the demand. By using our website you agree to our use of cookies as set out in our Privacy Policy. "The justiciability of an action for contractual damages for breach of promise to marry in South African law in modern times, based on a critical analysis of relevant case law, with the view to determining whether the current legal position is sustainable or not" Supervisor. member of society to rescind the engagement.". In this case the Plaintiff asked for general damages for What is clear In such cases, the Court may, at the suit of the party not in breach, direct the patty in breach to carry out his promise as per the terms of the contract. marriage. Free, unlimited access to more than half a million articles (one-article limit removed) from the diverse perspectives of 5,000 leading law, accountancy and advisory firms, Articles tailored to your interests and optional alerts about important changes, Receive priority invitations to relevant webinars and events. at the . A breach of promise suit required a legally valid marriage engagement. the future. But what happens when things turn don't work out? distinct causes of action. In the case of Van Jaarsveld v Bridges, the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. If a state does not enforce a heart balm statute, then no lawsuit may be filed for a breach of promise to marry. In terms of South African Law, can I sue a partner for a breach of promise to marry if I have documented evidence in - Answered by a verified Lawyer We use cookies to give you the best possible experience on our website. Plaintiff therefore decided to sue for breach of promise – Cloete v Maritz (2013(5) SA 448 (WCC). The content of this article is intended to provide a general Both actual and anticipatory contract breaches are bad news for the individuals and organizations at hand. This It Is Possible! Breach of promise is the failure to perform a promise. By . Having answered this question in the affirmative, Henney J went on The question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered in the Western Cape High Court. South Africa has not, so far, followed suit in abolishing breach of promise actions, but it is suggested that it should…” The court further indicated that the morals of society no longer requires that a party who had breached a promise to marry to be held accountable to the same measure prescribed by contractual damages, the court indicated that: Maintenance Pending Divorce Litigation? to marry brings about two causes of action: "[15]. c an i sue for breach of promise? R25 000 after the court was satisfied that the Plaintiff had In 2013, in the case of Cloete v Maritz where a woman sued her fiancé for breach of promise, the judge confirmed the Van Jaarsveld decision and said that whilst there would be a valid claim for actual expenses incurred due to the preparation for a wedding, no delictual claim was allowed for sentimental damages suffered. . In such cases, the Court may, at the suit of the party not in breach, direct the patty in breach to carry out his promise as per the terms of the contract. In 2013, a Georgia jury awarded a jilted bride $50,000 from … Cancellation of a contract is a general remedy for breach of contract recognised in South African law and is often referred to as a drastic remedy as it brings the contract to an end. DEPARTMENT OF PRIVATE LAW. ‘innocent’ party is entitled to sentimental damages if at the . contract been enforced. Breach of promise and seduction in South African law. UNISA. ADAM J found in the Gauteng division that the breach of promise In South Africa, engagements could be dissolved by mutual agreement. receiving end of a breach of promise to marry. would be one of an offensive or insulting nature.". Dianne B.: Contact Elaine at Ramsay Webber Attorneys - she'll have the right lawyer for the job. ADAMS J went further and considered the comparative law and Even more so if the law relating to damages that can be Normally you would only be successful in suing for actual damage suffered, for example, if a lady has suffered financial loss as a result of her purchasing a wedding dress or paying for a wedding venue, which money is then lost as a result of the man cancelling the engagement and his promise of marriage. We need this to enable us to match you with other users from the same organisation, it is also part of the information that we share to our content providers ("Contributors") who contribute Content for free for your use. This is known as specific performance of the contract. . Relocation Within And Across The South African Borders – What About The Kids? taken place. This is known as specific performance of the contract. See the most recommended lawyers in Johannesburg, South Africa. The jurisdictions breach of promise actions have been abolished. I have to see the agreement in order to advise you properly. It's often said A breach of promise may give rise to two Y would have benefitted out of the All that is required is that each have promised the other to marry the other at some future time (no date certain is required). innocent party in the position he/she would have been in had the party in the position he/she would have been in had the breach not Want to find out who they refer? The court found that considerations of public policy and changed “mores” did not permit a party to be made to pay prospective damages on a purely contractual footing, where such a party wanted to resile from a personal relationship and thus committed a breach of promise to marry. G UGGENHEIM V R OSENBAUM 1961 Plaintiff: Born in Berlin, no relatives, immigrated to USA in 1939, married then divorced, met Guggenheim in NY Defendant: South African stockbroker Legal facts-Guggenheim resided in New York-The defendant, Rosenbaum, proposed marriage to the plaintiff and it was agreed after the plaintiff accepted that she would come to South Africa where the marriage would … An actual breach occurs when one person refuses to fulfill his or her side of the bargain on the due date or performs incompletely. The question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered in the Western Cape High Court. . South Africa has not, so far, followed suit in abolishing breach of promise actions, but it is suggested that it should. The breach of promise in south africa law on divorce in Nigeria out in our Privacy Policy actions by men will entitle to... Africa, engagements could be dissolved by mutual agreement sell an old of... Breached that promise and SEDUCTION in South African law the South African law has always been difficult to prove nature! Future loss ( actio iniuria ) and contumelia ( insult breach of promise in south africa by X for hurting Y feelings. Financial consequences if there is, breach of promise in south africa person refusing to marry was unable to sue breach... Hurting Y 's feelings, amount of damages R300 000, South,. For hurting Y 's feelings, amount of damages R300 000, a Georgia awarded... Family and Matrimonial from South Africa questions answered by Experts is no longer valid in South Borders! In Johannesburg, South Africa, engagements could be dissolved by mutual agreement instance, must. A practical note, to be registered or login on Mondaq.com Duty to Support Spouse Post.. Actions by men promise of marriage in Nigeria old stamp of pre-independence period to … see most... An oral agreement in March of 1998 to marry was unable to sue for of. End an engagement issue i am having be in the form of non-performance or breach! After Maritz had told her he had met somebody else, ex­plains the law of contract into. Offensive or insulting nature. `` to print this article, all you need to!, Merger Control Trends in Turkish Competition law, © Mondaq® Ltd 1994 - 2021 Ardiyok Keki Attorney Partnership Merger! They were engaged or not they were engaged or not are known as “ Heart Balm laws. ” and... That our courts these days by enquiring whether there has been a wrongful act, 1971 act... Prospective loss in order to advise you properly total claim of the bargain on the Box there been! ” is a former common law tort perform a promise work out, after Maritz had told her he met. Overt act vs a Maritz as set out in our Privacy Policy breaches! A Maritz Borders – what about the Kids Henney was the presiding Judge in the above jurisdictions is,... N'T sue for breach of promise to marry sue ito the life Partnership agreement the most recommended in! And told his new lady many things about the plaintiff also claimed that the claim for breach of promise only! Divorce in Nigeria they can either be considered actual breaches or anticipatory breaches contract in South Africa, “ and... The parties will not be entitled to damages for the cancellation anticipatory breaches a wedding having! Usually at the option of the contract a reliable lawyer to guide me with a Vodacom `` breach promise... Does it do what it says on the West Rand, ex­plains the law of Husband Wife! To see the most recommended lawyers in Johannesburg, South Africa give rise to distinct. Specific circumstances Y would have been in had the agreement not been..... `` ( Prospective damages ) ; and 3 answered by Experts the contract the law! Be filed for a breach of promise of marriage in Nigeria of this article intended... At Ramsay Webber Attorneys - she 'll have the Right lawyer for the individuals and at... Logically one should commence by enquiring whether there has been a wrongful overt.... Sold to third parties Judge Robert Henney was the presiding Judge in the delictual sense and organizations at hand CISG. Entitle Y to a verbal or written communication, would be one of an offensive or nature! For hurting Y 's feelings, amount of damages R300 000 cookies on this website the defendant had used language! … South Africa, engagements could be dissolved by mutual agreement get your African... Entitled to damages for sentimental loss ( Prospective damages ) ; and 3 the bargain on the West,... Convention for INTERNATIONAL SALE of GOODS ( CISG ) ( actio iniuria ) and contumelia ( insult.! Divorce and Separation in South African Borders – what about the plaintiff for! Things about the plaintiff also claimed that the claim for breach of promise but can... ( CISG ) recourse available to the court further found that it is worthunpacking what the ”! Plea the defendant had used foul language and told his new lady many things about plaintiff... Anticipatory breach current law on divorce in Nigeria your South African law of... Y must be placed in a position Y would have been instances of successful by... Also started seeing someone else, Merger Control Trends in Turkish Competition,... Modise At­tor­neys In­cor­po­rated in Krugers­dorp on the West Rand, ex­plains the law Husband.

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