Case 5: A broken engagement

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whichever party broke the engagement. Liability for a broken promise to marry will only be imposed in case of fraudulent behaviour, for instance if a party pretends to be willing to marry in order to profit from his or her consent.

In the present case B can claim the ring back, but has no other claim against A.3

England

A has no liability to B by virtue of having broken off the engagement. Under Law Reform (Miscellaneous Provisions) Act 1970, section 1, an agreement to marry does not have effect as a contract giving rise to legal rights, and therefore the breach by one party of the engagement does not constitute a breach of contract. If the engagement ring was given on the condition, express or implied, that it should be returned if the marriage did not take place, A will be required to return it. However, under section 3 of the 1970 Act, in the absence of evidence of such a condition being imposed it is presumed that the gift of an engagement ring is an absolute gift. On the facts as given, therefore, A is entitled to keep the ring.

Until 1970 an engagement was technically a contract which would give rise to a claim for breach of contract (generally referred to as an action for ‘breach of promise of marriage’) against the party who unilaterally broke off the engagement. However, this action was already little used by the time it was abolished by statute on the recommendation of the Law Commission4 who thought that the consequences of a broken engagement should no longer depend upon the parties’ respective fault. The principal difficulties which required solutions were the property disputes arising between the parties to the engagement, and for this the 1970 Act5 provides that the law governing property disputes between husband and wife should apply. The abolition of the contract of engagement is also consistent with the general approach of English law to the relationship between husband and wife, in which it is normally presumed that domestic arrangements do not give rise to contractually binding agreements.6

B’s ability to recover for the payments he has made to the caterers and the advance rent on the flat therefore do not depend on A’s

3See I. Lund-Andersen, Familieret 1990, 142.

4Law Commission Report No. 26, Breach of Promise of Marriage (London, 1969), para. 10.

5Section 2. 6 Balfour v. Balfour [1919] 2 KB 571.

wrongful conduct in having broken off the engagement (since there is no legal wrong committed) but on B demonstrating some other ground of recovery, such as the fact that he was acting as A’s agent in making the payments (or, at least, that the payments were made by B acting for A and B jointly) so as to create a liability in A to reimburse her share of payments made. Whether such a case can be established will depend on a detailed consideration of the transactions that B entered into with the caterers and the intended landlord, facts which we have not been given.

Finland

Until 1988, the Finnish Marriage Act contained special rules on engagement to be married, such as returning the gifts given to one’s betrothed in the event of cancellation of the engagement. These legal provisions were, however, repealed in 1988. Nowadays questions of the legal relationship between the betrothed couple fall under the general rules of civil law, such as contract and damages law.7

Thus, the possible liability of a person withdrawing from an engagement depends on the general conditions of liability for damages or restitution of gifts. As to the liability for damages, the question of fault is crucial. In a case like this, we have to pose the question whether the person, here A, has acted in a manner contrary to good practice in this kind of situation. It is an internationally acknowledged principle that an engagement to be married, due to its strong personal character, is an agreement that can be freely terminated. Thus, acting this way cannot in itself be a basis for any liability. The long duration of the engagement, as in this case, makes no difference in this respect.

But this does not mean that no liability can under any circumstances arise out of one’s conduct in connection with terminating an engagement. For example, being slow in informing the other party of one’s intention not to marry can cause him or her unnecessary expense in continuing to make preparations for the wedding. This may constitute fault and make the terminating party liable for damages to the other party that could have been avoided if the relevant information had been available to him or her. The liability can be said to have its basis in the culpa in contrahendo doctrine and to cover that part of the injured party’s negative (reliance) interest that is caused by the lack of information. As

7See, e.g., Aarnio and Helin, Avioliittolain muutetut sa¨a¨nno¨kset [The Revised Provisions of the Marriage Act], p. 18.

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regards fault, the long duration of the engagement, as a general rule, does not have a clear impact on a party’s liabilities.

Basing an action on culpa in contrahendo in situations like this would, however, in some cases cause serious practical problems concerning evidence. Which party would have the duty to bring evidence on the question of fault? If we apply the contract law rule, the burden of proof is reversed: it would lie on the defendant. In this case, A would have to prove that she was not slow in informing B about her plans. If, on the contrary, the general damages law rule is applied, the burden of proof would lie on the plaintiff: B would then have to prove the existence of fault in A’s conduct. Because it is likely that only circumstantial evidence could be brought about A’s intentions, the burden of proof question would probably have a decisive role in the case. There are no established rules about burden of proof in engagement situations. However, the exceptional character of damages claims based on an engagement would perhaps make courts more willing to impose the burden of proof on the plaintiff. In this case this could diminish in a decisive way B’s real possibility of getting compensation.

In this case, if elements of fault in A’s conduct can be found, such as in not informing B of her intentions in time, that have caused B’s damage or a part of it, A can in principle be held liable for that damage. The damages which might be recoverable are within the negative interest and consist of the deposit paid by B and the advance payment of rent (the latter only if B had no use of the flat when the marriage was cancelled).

As to whether A must return the diamond engagement ring given by B as an engagement gift, we have to refer to general rules on the validity of legal acts under false assumptions. The pivotal rule is in the Finnish Contracts Act (Oikeustoimilaki, 1929), section 33: ‘A promise that should in other respects be held valid should not be executed if it has been made under circumstances which would render it contrary to good faith8 for a person knowing about the circumstances to refer to the promise and the addressee of the promise must be supposed to have known about them.’ It is most likely that the question of A’s liability for returning the engagement ring would be considered on the basis of this provision, and it is very probable that the contract9 would be declared void, because the expectation of a marriage, which motivated a party to

8Literally: contrary to honour and unworthy.

9The case KKO 1969 I 1 shows that Contracts Act, s. 33 is applicable to a gift.