1. The Engagement

• Children's Act: Section 7 lowers age of majority from 21 to 18 years;
• when one turns 18, one has capacity to act, thus also capacity to conclude an engagement

2. Engagement - Definition
Contract between a man and woman to marry each other on a specific or determinable date.

An engagement is not a normal contract.

• A valid engagement is not a prerequisite for the conclusion of a valid marriage.
• The engagement is concluded by means of offer and acceptance.
• The parties do not have to be in each other's presence and thus an engagement can be concluded by a representative on behalf of the parties, with their consent.
• No special formalities are required for the conclusion of an engagement.

3. Requirements for a valid engagement
a) Four requirements for a valid engagement

1. Consent
2. Capacity to act
3. Engagement must be lawful
4. Possibility of performance

(i) Consent

• A material mistake renders an engagement void.
• A misrepresentation renders an engagement voidable, at the instance of the party who was misled.
• It does not matter whether the misrepresentation was made innocently or fraudulently.
• Misrepresentation is not only committed by positive false representations, but also through a failure to correct an existing misconception or an omission to disclose certain facts where there is a duty to speak.

a) Two examples of such a mistake:"
     Error in persona (mistaken identity); and
     Error in negotio (mistake re nature of act).

• A misrepresentation occurs when one of the parties to the contract makes a false representation to the other concerning certain facts which, had he known the truth, would have resulted in the contract not being concluded, or concluded on different terms.
• A misrepresentation is material if it is of such a nature as to seriously jeopardize the possibility of achieving a happy and harmonious marriage.

b) Material misrepresentation.
     Impotence, sterility, mental illness, sexual promiscuity.

c) Misrepresentation comprises:

1. Making a false representation
2. Failing to remove a misconception
3. Not disclosing certain facts where there is a duty to speak

SCHNAAR v JANSEN

Area of Law: Engagement, consent, misrepresentation, failure to disclose.

Facts: The man cancelled his engagement after discovering one of his fiances uncles had murdered his wife, that another uncle had entered into an interracial marriage and her brother had served a prison sentence for theft.

Problem: Could he under these circumstances unilaterally repudiate?

Held: He could not repudiate on this basis. She was under no obligation to disclose these facts. Therefore, she could claim damages from him.

(ii) Capacity to Act

• Age of Majority Act was replaced by the Children's Act
• Majority is attained at 18 years

If a minor gets engaged, he needs the necessary consent from his parent/guardian.

• It is not true that just because your parents have given consent for you to get engaged that you have automatic consent to get married.
• Should the parents withdraw consent before the marriage, the engagement is automatically terminated.
• Persons who do not have capacity to act due to mental illness cannot become engaged while incapable of acting.

(iii) Lawfulness

• Both parties must be unmarried.
• A promise made by a married person to marry after obtaining a divorce is void because it is contra bonos mores (against good morals).

(iv) Possibility of performance

• They must not be under the age of puberty.
• They must not be related within the prohibited degrees of relationship.

4. The Content and Consequences of Engagement
1.    If a date for the marriage has been determined, then there is a reciprocal duty to marry on that date.

• The date can be changed by mutual agreement.
• If one party refuses to marry on the day agreed, he commits a breach of contract.

2.    If no date has been determined, it is tacitly understood that the marriage will take place within a reasonable time.

• The engagement does not give either party the right to claim physical intimacy.
• An engagement can be entered into subject to conditions Impossible and unlawful conditions do not render the engagement void, but are pro non scripto while the engagement remains valid.
• The engagement is void only if the condition is contrary to the nature of marriage.

3.    Examples of such condition:

1. A valid condition: won't marry until age 25
2. Impossible condition: won't marry until we buy a house on moon
3. Unlawful condition: we will only get engaged if we have sex together now
4. Condition contrary to marriage: we will get engaged on condition we agree never to have children

• Because an engagement is an agreement to marry, it requires the couple to be faithful to each other.
• If one, therefore, enters into a relationship with a 3rd person, the other is justified in withdrawing from the engagement and instituting an action for damages and satisfaction.

5. Termination of the Engagement
1.    Six ways in which an engagement can be terminated.

1. Marriage
2. Death of either of them
3. Mutual agreement
4. Withdrawal of parental consent
5. Breach of promise
6. Unilateral justified termination based on sound reasons

2.    What is a justa causa? Fact or occurrence which comes about AFTER the engagement has been entered into and, which according to human experience, will seriously jeopardise the chances of a happy and lasting marriage.

• A simple realisation by one of the parties that he or she no longer loves the other party is not considered a justa causa for cancelling the engagement.
• However, this reason should be considered the most valid and sensible one for unilateral termination of the agreement.
• It is obvious that the possibility of a successful marriage would be seriously jeopardised if one of the parties realises that the marriage would be a mistake, even before it was entered into.

3.    Four examples of a justa causa.

1. Sterility
2. Impotence (becoming impotent)
3. Develop an hereditary disease
4. Commits a serious crime

(i) Breach of Promise

a) What is a breach of promise?
Unlawful termination of engagement.

b) What is the consequence of a breach of promise?
The innocent party can withdraw from the engagement.

c) What can the "innocent" party claim from the "guilty" party?
Damages for breach of promise and satisfaction for personality infringement.

d) Example of a breach of promise:
Refuse to marry your fiance without good reason.

e) Can the "innocent" party claim specific performance (i.e. force the "guilty" party to marry)?
No.

f) What type of damages would the injured party be claiming?
Patrimonial loss.

g) When can a party claim satisfaction?
When his honour, dignity and reputation have been injured (non patrimonial).

6. Consequences of Termination
Four available actions after termination of the engagement:

1. Action for damages based on the breach.
2. Action for satisfaction based on personality infringement.
3. Action to claim return of engagement gifts.
4. Action of ground of seduction (damages and satisfaction).

(i) Action for damages

• Damages for breach of promise are awarded differently from the way in which they are awarded for other contracts.
• When ordinary contracts are breached, damages are calculated on the basis of positive interest.

a) What does positive interest mean?
Damages which will place him in the position he would have been had the contract been performed.

b) Example of positive interest.
If married in Community of Property she could claim half his estate as well as maintenance.

• In the case of breach of promise, however, damages are calculated on the basis of positive and negative interest.

a) What does negative interest mean?
Actual monetary loss because of expenses incurred. We place the innocent party in the financial position he would have been in had the engagement never been entered into.

b) Examples of negative interest.
Cost of invitations, food, and dress.

GUGGENHEIM v ROSENBAUM

Area of Law: Engagement, breach of promise, positive and negative interest

Facts: A divorced woman, while living in New York, met the defendant who was domiciled in South Africa. They fell in love and agreed to marry in South Africa. She sold her car and some furniture; she put some furniture in storage and gave up her apartment and her job. When she arrived in South Africa, he repeated his promise to marry her. However, later he refused to marry her. She sued him for damages and satisfaction.

Held: A valid engagement existed. She was entitled to sue for actual loss and prospective loss (i.e. some positive and some negative interest) and she could sue for satisfaction.

(ii) Action for satisfaction based on iniuria

• For the innocent party to be successful with this action, he must be able to prove:

1. That his feelings were hurt or dignity wounded.
2. That the guilty party intended to harm the innocent party's personality (animus iniuriandi).

• To arrive at an amount to be awarded, the court takes the following factors into account:

The way in which the breach occurred, the motive behind the action, their social status, plaintiff's age and possibility of plaintiff marrying someone else.

(iii) Return of engagement gifts

a) What are sponsalitia largitas?
All gifts made with the marriage in view.

b) What are arrhae sponsalitiae?
Engagement ring and gifts presented to show the seriousness of promise (watch).

• If the parties agree to terminate the engagement, (a) and (b) must be returned by both parties. Inconsequential gifts (ones to which no specific meaning is attached) or gifts which have been used up or lost, need not be returned.
• If the engagement has been brought to an end by justa causa, the same rule as above, will apply.
• If one party has committed a breach of promise:

a) The innocent party can claim back (a) and (b) - which he gave.
b) The innocent party can keep (a) and (b) which he received.

If you would like to get Ronald Bobroff & Partners Inc to assistance you with any Engagement or  Valid Marriage issues contact us or call us on 011 880-6781 or on our 24hour toll free number 0860 100 184.