Summary CSL2601 FAMILY PACK FINAL.

FAMILY LAW NOTES THE ENGAGEMENT Definition Defined as a contract between a man and woman to marry each other on a specific or determinable date. An engagement is not like a normal contract!!! A valid engagement is noCSL2601FAMILY PACK FINAL.pdft a prerequisite for the conclusion of a valid marriage. The engagement is concluded by means of offer and acceptance. Contracts can be concluded by post the moment the person who made the offer becomes aware of its 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. Only persons who are competent validly to marry one another can enter into a contract of engagement. In certain circumstances, and based on good reasons, an engagement may be terminated unilaterally. Only damages can be claimed. Specific performance cannot be claimed because in South Africa it is unlawful to force anyone to marry. The calculation of damages is sui generis because damages are calculated on the basis of negative and positive interest. Requirements for a valid engagement The four requirements: 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 is misled. It does not matter whether the misrepresentation was made innocently or fraudulently. CSL2601 FAMILY PACK FINAL. CLS cc © Family Law Notes 2 Critical Law Studies cc © 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. Two examples of a mistake: Error in persona (mistaken identity) and error in negotio (mistake re nature of act). A misrepresentation occurs where 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. Example of a material misrepresentation: Impotence, sterility, mental illness, sexual promiscuity. Misrepresentation: Making a false representation. Failing to remove a misconception. Not disclosing certain facts where there is a duty to speak. In Schnaar v Jansen: the man cancelled his engagement after discovering one of his fiancées uncles had murdered his wife, that another uncle had entered into an interracial marriage and her brother had served a prison sentence for theft. Could he under these circumstances unilaterally repudiate? The Court held that he could not repudiate on this basis. She was under no obligation to disclose these facts. Therefore, she could claim damages from him. CLS cc © Family Law Notes 3 Critical Law Studies cc © SCHNAAR V JANSEN – breach of promise to marry – justa causa. The plaintiff was engaged to the defendant. After they got engaged the defendant discovered that one of the plaintiff’s uncle had a black wife, that another had been hanged for his wife’s murder and that her brother had been convicted of housebreaking and theft. The defendant thereupon repudiated the engagement. The plaintiff sued him for breach of promise. The defendant admitted breach of promise but averred that the abovementioned circumstances rendered it impossible for him to comply with his promise to marry the plaintiff and that repudiation was justified. The plaintiff accepted to the defendant’s plea and the exception was allowed as was the claim. The court held that these circumstances did not justify unilateral repudiation of the engagement. Judge President Dove-Wilson said “ if a man engages himself to a woman without having satisfied himself as to her relatives he takes the risk of their being unsatisfactory” Some authors accept this decision whilst some do not. Van Heerden suggests that this decision is incorrect as “an engagement to marry is a contract of utmost good faith and a party with a skeleton in his/her cupboard is obliged to disclose it” (ii) Capacity to Act If a minor gets engaged, he needs the necessary consent from his parent/guardian. Ratification ex post facto is also sufficient. Both parties must have the necessary capacity to act. 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. If 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. CLS cc © Family Law Notes 4 Critical Law Studies cc © The Content and Consequences of Engagement 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. 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 the marriage. Terms: A valid condition: won’t marry until age 22. Impossible condition: won’t marry until you build me a house on the moon. (engagement is valid but the condition is pro non scripto) Unlawful condition: we will only get engaged if you allow me to have sex with you now. (engagement is valid but the condition is pro non scripto) Condition contrary to marriage: we will get engaged on condition we agree never to have children. (engagement is invalid) Because an engagement is an agreement to marry, it requires the couple to be faithful to each other. So if one 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. Termination of the Engagement 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.