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In earlier days there was a provision in Swedish law regulating the consequences of, and responsibilities arising from, ‘a broken promise to marry’. This provision was discarded many years ago and in current law no legal responsibility arises from breaking off an engagement. However, a breach of an engagement can still give rise to certain legal effects, even though there are no rules regarding this in the Marriage Code.61 Inter alia, general principles of contract law are applicable to questions concerning the cancellation of gifts between the parties and, in some exceptional cases, concerning liability for damages for one of the parties.62

A promise of a gift, such as a promise to give the other party an engagement ring, can be revoked without any consequences as long as the gift has not been handed over to A. If the gift has been handed over to A, it might have been given under the condition that the parties marry. In order for B to reclaim the ring, A must have understood, or ought to have understood, the condition. In most cases, a transferred gift in the form of an engagement ring given to the other party could not be revoked. Thus, A does not have any obligation to return the ring or compensate B for the value of the ring.

If the costs of the reception and the rent are based on agreements between A and B, the presumption would be that these costs should be borne equally by A and B.63 This presumption could, however, be rebutted due to the circumstances in the particular case, for example if A was unaware of the contract to rent a flat. A fact of no relevance is which party caused the cancellation of the wedding.

Switzerland

According to Swiss law a promise to marry gives rise to a contract64 that is governed by special legal rules. The provisions regarding ‘betrothal’ were revised in 2000.

The contractual promise to marry is in opposition to the general rule that the spouses freely decide on their marriage in the moment of the

63Cf. §2 of Lag (1936:81) om skuldebrev (Promissory Notes Act) which can be used as an analogy for debts also outside the scope of application of the Act.

64Werro, Concubinage, mariage et de´mariage, n. 166; BaslerKommentar-Huwiler, ZGB 90 n. 3ff.

solemn marriage act.65 Therefore ZGB 90 holds that betrothal does not give rise to an action for specific performance of the marriage. Each party has the right to withdraw from the betrothal at any time.

There is a special provision for the return of presents after the dissolution of the betrothal. By ZGB 91 I:

In case of the dissolution of the betrothal each party can claim the return of the presents made to the other, with the exception of the usual occasional presents; where the agreement to marry is terminated by the death of a party, the return of the presents cannot be claimed.

This new provision is more favourable to the defendant because there is no duty to return the usual occasional presents. The content of this term depends on the financial situation of the parties.66 If A and B did not have a very high standard of living, A is obliged to return the diamond ring.

There is also a special provision regarding the liability to compensate other expenses. By ZGB 92:

Where one party in view of the promised marriage has, in good faith, made special arrangements, he or she can, at the repudiation of his or her promise of marriage, demand adequate compensation, provided this does not appear to be unfair considering the circumstances as a whole.

The deposit for the caterers and the payment of rent are in general ‘arrangements’ within the meaning of the provision (according to legal writers,67 examples of ‘arrangements’ are the purchase of furniture, the booking of a honeymoon and the renting of a new flat). But the duty to contribute requires that the arrangements be made in good faith. There is no good faith if the amount of the expenses was not reasonable in relation to the financial situation of the parties. Moreover, the plaintiff cannot necessarily claim full compensation. The judge has the discretion to determine the amount that is the ‘adequate’ contribution. According to the earlier provision there was no liability in the case of a good (material) reason for the dissolution. The new rule is more flexible: in addition to the reason for the dissolution the judge has to take into account the consequences of the dissolution and other circumstances. In view of the wide discretion of

65Hegnauer and Breitschmid, Grundriss des Eherechts, n. 3.07.

66Cf. Zu¨ rcherKommentar-Escher, ZGB 632 n. 2ff.; BaslerKommentar-Huwiler, ZGB 92 n. 13.

67BaslerKommentar-Huwiler, ZGB 92 n. 11.

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the court, A might be liable for part or the full amount of the expenses (E3,500).

Editors’ comparative observations

This case raises two separate issues in relation to an engagement which is broken off by the fiance´e the day before the wedding is due to take place: whether she must return the engagement ring; and whether she is liable for the expenses her fiance´ had incurred in relation to (a) the wedding itself (the cost of the wedding reception) and (b) their future married life (an advance of rent on their intended home together). A majority of jurisdictions give remedies in each case, but the reasoning varies.

The case demonstrates how many jurisdictions modify their general approach to precontractual liability in the light of the very particular social policies they think are appropriate to the case of failed engagements.

Engagement ring: a majority of jurisdictions have special rules which make express provision either for gifts generally, or for engagement rings in particular, in the case where the engagement is broken off. Sometimes the general rule is that the ring (or other gifts) must be returned (Austria, Denmark, Germany, Greece, Ireland, Italy, Portugal, Switzerland); sometimes it can be kept (England, France). In France and Switzerland the answer depends on whether it was an unusual gift in relation to the donor’s means. The reasoning is sometimes seen as a particular case of the rules on unjust enrichment; but in some cases is based on a presumption of the parties’ intention when the ring was first given, either that the gift was conditional on the marriage taking place (Ireland) or that it was unconditional (England). And jurisdictions which either do not have special rules for broken engagements (Finland, Norway, Sweden), or although the case of a broken engagement is regulated they do not have a special rule for presents between the engaged couple (the Netherlands, Scotland, Spain), resort to general principles of unjust enrichment, contract and property law which are sometimes similar to the special provisions of other jurisdictions in asking whether the gift can in the circumstances be held to have been either conditional or unconditional. The point on which all systems are clear is that the answer for the ring does not in principle depend on the fault of the party who breaks off the engagement: the trigger for liability to restore the ring (or, in some cases, such as the Netherlands, its value) is simply the breaking-off of

the engagement. However, in Austria if the donor who seeks restitution was (unlike in the present case) himself at fault he will not be able to claim restitution of the ring.

Expenses: again, the answer to whether A is liable to reimburse B’s expenses sometimes depends on special statutory rules applicable to the breaking-off of an engagement; sometimes it is governed by the general rules applicable to the precontractual phase of a contract. But in jurisdictions which have special rules, they are generally seen as a particular application of the system’s rules on culpa in contrahendo (by contrast to the special rules for the return of the ring, above, which were seen as a particular application of the rules on unjust enrichment). Most commonly, jurisdictions which have a general rule of precontractual liability or culpa in contrahendo will give B a remedy based on the fact that A’s breaking-off of the engagement was unjustified. This is the case for Austria, Germany, Greece, Italy, the Netherlands, Portugal, Spain and Switzerland (special statutory rule) and Finland, France, Norway (general application of precontractual liability, culpa in contrahendo or tort). However, Denmark applies a more limited rule for broken engagements which requires fraudulent behaviour; and Italy and the Netherlands only allow the liability to be imposed where there has been a formal announcement by the parties of their intention to marry.

It should be noted that Germany, Greece and Portugal have express provision that the liability for expenses on the wrongful ending of an engagement extends to the parents of the disappointed partner, no doubt reflecting a social reality that it is the parents, rather than the engaged son or daughter, who will in fact have incurred the costs of the planned marriage. The Austrian statutory provision does not cover parents’ losses but has been extended to them by (not very recent) case law.

Jurisdictions which have not accepted a general principle of precontractual liability differ on the outcome of this case. In England statute has removed contractual liability for the breaking-off of an engagement, and no tort is committed; Scotland has a wider statutory provision excluding tort liability even in principle; but Ireland has a special statutory provision under which expenditure can sometimes be recovered.

A number of reporters (England, Norway, Scotland, Sweden) consider whether A’s liability might in fact arise based on either B’s acting as her agent in having incurred them (or his share of them), or on the basis of at least some implied agreement between A and B for A to reimburse B’s costs.