conclude a contract but was later not fulfilled, has been held10 to satisfy the criteria set out in section 33 for the contract to be void. In addition, it seems likely that A knew that the expected marriage was B’s motive in giving her the gift.

Declaring the gift void would make A liable to return it to B. The long duration of the engagement and A’s possession of the ring cannot have a clear impact on her liability for returning the ring. It has also to be emphasised that, in contrast with damages liability, the defendant’s fault is not a legal prerequisite for declaring the gift void or for the liability to return it.

France

In principle, French law recognises a person’s right (or, rather, liberte´) to break off his or her engagement.11 This right is allowed provided that there is no abuse in its exercise. In case of abuse, the person who broke off the engagement would be held liable under article 1382 of the Civil Code. The validity of the termination depends upon several factors, all focused on one main idea: it is abusive if it occurred while the other engaged party had a reasonable belief 12 that the marriage would take place.

Three factors are relevant. First, the duration of the engagement must be taken into account, since a long period is likely to found the belief that the marriage will occur. The engagement between A and B lasted three years, which is a very long time, especially nowadays. One can therefore conclude that the marriage between A and B was quite certain, B having strong reasons to believe it would occur. Secondly, the suddenness of the breaking-off must be examined: the closer it is to the wedding day, the stronger the belief that the marriage will actually take place.13 In our case, A broke off the day before the wedding, which is very close to the ceremony. Furthermore, the fact that B has spent money in organising the couple’s future life is further evidence of his

10KKO 1977 II 76: a seller of real estate had expected that the buyer was going to marry him a short time after the sale. As this expectation, which the buyer knew about, was not fulfilled, the contract was considered to have been made under circumstances which rendered it contrary to good faith for the buyer to enforce it, taking into account also the low consideration agreed upon. Therefore the contract and the official registration of the buyer’s ownership of the real estate were declared void.

11Civ 1, 22 Oct. 1970, Bull Civ I, 215. The engagement itself is not a contract, and so tort rules apply here.

12‘Croyance le´gitime’. See the French report on case 7, n. 19, for a discussion about the similarities and differences between this concept and the idea of reliance.

13Civ 2, 2 July 1970, Bull Civ II, 178.

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belief that he was to marry A. Thirdly, breaking off the engagement may be justified by a legitimate motive,14 such as a disagreement about the choice of the legal rules governing matrimonial property.15 As no motive is reported, we can assume there is no reasonable ground for the breaking-off.

A is therefore likely to be held liable for breaking off her engagement with B under article 1382 of the Civil Code.

Under this ground of liability, French law allows the victim16 to recover two types of damages. First, B can obtain damages for the distress suffered consequent upon his engagement being broken. The amount of this head of damages (‘dommage moral’)17 is left to the discretion of the judges. Secondly, the victim can recover the sums spent in view of the wedding ceremony18 as well as the couple’s future life. Therefore, B would be able to recover the costs he had borne both for the price paid to the caterers and for the advance payment of rent he made on the flat.

The issue of the restitution of the engagement ring must be examined separately, for it is not connected to tortious liability in French law, nor is it caught by the subsidiary action of unjust enrichment. According to article 1088 of the Civil Code, the engagement ring bought by the engaged person, as any other present made under the belief the wedding was to take place, can be recovered if the wedding is not celebrated.19 Though the text is comprehensive, case law has established that it does not apply to wedding presents that are considered as presents according to usage.20 Such ‘pre´sents d’usage’ can be kept by the formerly engaged person, whatever the circumstances of the breakingoff of the engagement. According to the facts, it seems that the ring corresponds to such a definition, because it is usual to offer a ring when

14There is a controversy among academic writers about the existence of this third condition.

15‘Re´gime matrimonial’. See Civ 1, 19 July 1966, Bull Civ I, no. 443.

16It seems that French courts award damages more easily to engaged women than to engaged men: see J. Rubellin-Devichi, RTDCiv 1989, 278, no. 2; Be´nabent, Droit de la

famille, no. 50; Civ 1, 15 Mar. 1988, Re´p. Defre´nois 1988, art. 34309, no. 73, 1012.

17This can be roughly considered as an equivalent for the English pain and suffering. See Paris, 12 Mar. 1987, D.1987, IR, 142.

18Be´nabent, Droit de la famille, no. 50; Civ 2, 2 July 1970, D.1970, J, 178.

19Paris, 3 Dec. 1976, D. 1978, J, 339.

20See Civ. 1, 30 Dec. 1952, D. 1953, J, 161. A ‘pre´sent d’usage’ is a present that is considered as a usual gift, according to the circumstances in which it was given, as long as it matches the engaged person’s means.

an engagement occurs, and because B seems to have the means of affording the cost of such a ring (E750). Therefore, it is likely that A can keep the ring.

Germany

The BGB contains special provisions in relation to the withdrawal from an engagement. Under §1298 BGB the withdrawing person must compensate all losses of the other party (and his parents and third persons who acted in loco parentis) caused by expenses incurred or by obligations undertaken in expectation of marriage, provided these were appropriate in the circumstances and there was no serious ground for withdrawal. The burden of proof of a serious reason lies with the person withdrawing from the engagement. It is generally acknowledged that the liability imposed on the withdrawing party by §1298 BGB is liability for the other party’s reliance interest (Vertrauensschaden).21 Therefore A has to compensate for the catering costs as well as for B’s advance payment of rent.

If the marriage fails to take place, under §1301 BGB each engaged person may claim the restitution of the gifts made in consideration of the engagement, provided these were not gifts in discharge of a moral debt. Hence B is entitled to the return of the diamond ring as well, regardless of who broke the engagement.22

The prevailing opinion in the courts and in legal writing holds §1298 BGB to be a special case of culpa in contrahendo, whereas §1301 BGB is regarded as a special provision of the law of unjust enrichment.23 There is no doubt that the Code’s provisions towards engagement regulate the failure of a marriage conclusively, and so B has no additional claims in contract, tort, restitution or any other form. Although only a few cases have been reported in recent times, it would be utterly inappropriate to deem the provisions of §§1298 to 1301 BGB as nothing more than ‘law in the books’.

Greece

In marital relationships it is rather unsuitable to speak of negotiations in good faith, at least within the legal meaning of the term!

21Gernhuber and Coester-Waltjen, Lehrbuch des Familienrechts, §8 V 1 (p. 79).

22Cf. Mu¨nchKomm-Wacke, §1301 Rn. 1.

23BGH, decision of 18 May 1966, BGHZ 45, 258 (262); Gernhuber and Coester-Waltjen, Lehrbuch des Familienrechts, §8 VI 1; Staudinger-Lorenz, Vorbem. zu §812ff. para. 35; Palandt, Bu¨rgerliches Gesetzbuch §1301 para. 3.

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Nevertheless, marriage is a contract and the engagement period resembles the precontractual stage although, according to Greek law, the engagement itself is also considered to be a contract (thus, liability emanating from the engagement is contractual).24 Greek family law contains a specific set of provisions dealing with ‘precontractual liability’ issues in marital affairs. These provisions are limited to determining some financial aspects between the engaged couple where the engagement comes to an end. These specific provisions of family law override the general provisions on precontractual liability in the Greek Civil Code.25

Article 1348 GCC provides that when the marriage is called off each party may recover from the other, on the basis of unjust enrichment provisions, anything that was provided as a donation to or a token of the engagement. Hence, B may recover the diamond ring from A on the basis of the unjust enrichment provisions in the Civil Code.26

Also, article 1347 GCC provides that if one of the engaged persons unilaterally breaks off the engagement without sufficient grounds, that person must provide compensation to the other party or to his or her parents for the expenses incurred or other measures taken in anticipation of the marriage, taking into account any special circumstances which may exist. In this case, A unilaterally broke off the engagement without sufficient reason and therefore, according to article 1347 GCC, A must compensate B for the expenses he incurred in the preparations for the wedding. The compensation includes the sums paid by B, namely the non-refundable deposit of E1,500 to the caterers and the advance rent of E2,000.

Ireland

A must return the engagement ring to B if requested to do so. A may also be liable for some or all of the non-refundable caterer’s deposit and the advance rent payment if (1) the amounts involved are considered substantial with respect to B’s earnings and (2) B has received no benefit from these payments.

Family Law Act 1981, section 2, removes an agreement to marry (an engagement) from the law by clearly stating that no action shall lie for

24Article 1346 GCC.

25G. Daskarolis, ‘Dissolution of the engagement and precontractual liability’ EEN 28, 699ff.; Kambitsis, Precontractual Liability, p. 77.

26Article 904ff. GCC.

breach of such an agreement. However, the legislation recognises that where an engagement is terminated, financial and property disputes may arise between the parties and it therefore provides a mechanism by which these can be resolved. Gifts made by one of the parties to the other (including the engagement ring) are presumed, in the absence of evidence to the contrary, to have been conditional gifts which should be returned at the request of the donor if the marriage does not take place for any reason other than the death of the donor.27 Where the marriage fails to take place due to the death of the donor, then it will be presumed that the gift was given unconditionally unless there is evidence to the contrary.28

The Act also provides for the recovery of substantial expenditure on the termination of the engagement, in certain situations. Section 7 operates where a party to an engagement incurs substantial expenditure arising from the engagement from which that party did not benefit by reason of the termination of the engagement. In such instances, the court may make an order against the other party as it sees just and equitable in the circumstances, including an award for the recovery of expenditure incurred. There are three crucial elements: first, that ‘substantial expenditure’ had been incurred; secondly, that the party lacked any benefit from the expenditure; finally, that the reason for this lack of benefit was as a result of the termination of the engagement.

The question of what constitutes substantial expenditure was determined in MM v. DM.29 Here the court held that ‘substantial’ had to be determined in relation to the resources of the parties themselves, that is, substantial in comparison to their earnings. Where the expenditure is not regarded as substantial then the party incurring such expenditure is not entitled to any court order.

The party must have received no benefit arising from the expenditure. In MM v. DM, a party who had paid a substantial amount for a honeymoon failed in her claim since, although the marriage had not gone ahead, the parties had both gone on the holiday together. Since there had therefore been a benefit, no order could be made under the relevant section.

Finally, it is clear that the failure to benefit must have arisen from the termination of the engagement. For example, suppose that one party has paid several thousand pounds for a honeymoon. The wedding is then called off but both parties agree to continue with the honeymoon

27Family Law Act 1981, s. 4(1)(a); see generally Shatter, Family Law, p. 143ff.

28Family Law Act 1981, s. 4(1)(b). 29 [1996] IFLR 187.