In Malaysia, there are no specific provisions of law relating to the issue of promise to marry. The breach of promise to marry is dealt under Contract law. In order to enforce the promise, it does not require any written agreement or mutual promise which is expressly worded but it is sufficient enough as long there is evidence of consideration to create the promise.
This can be seen in the case of Harvey v Johnston , where the court held that the defendant could be sued on a promise to marry the plaintiff, made in consideration of the plaintiff going to Ireland at the defendant’s request to marry him. The conduct of the parties may justify as an inference that they have mutually promised to marry.
In the case of Dorris Rodrigues v Bala Krishnan , Ajaib Singh J described that the claims for breach of promise to marry is applicable in Malaysia. This is because, even though the English Law Reform (Miscellaneous Provision) Act 1970 abolished action for damages for breach of promise of marriage, it is not applicable in Malaysia by virtue of Civil Law Act 1956 and Contract Act 1950.
An action for breach will lie against the party in breach whether it be the man or the woman. There is a breach if one of the party demand for the marriage and the other party has not able to produce a reasonable excuse for not wanting to go through the marriage which he or she at the first place agrees to marry.
In order to understand what breach of promise to marry is, we need to look at the cases. For example, in the case of Harrison v Cage , the court held that there was a breach of promise to marry as the defendant’s wife has refuse to marry to the plaintiff when the plaintiff ask that the marriage to be solemnized even though there is mutual agreement between plaintiff and the defendant’s wife to marry.
DEFENCE AVAILABLE FOR THE BREACH OF PROMISE TO MARRY
When the breach of promise to marry has established, the parties in default is liable for the damages occurred as the result of breach. However there is several defence that can be used by the parties in default in order to escape liability. ‘
There are 3 possible defence that can be used in order to escape liability from the breach of promise to marry, which are;
Misrepresentation of Fact
In order to establish this defence, the parties in default must prove that he or she has entered into the contract to marry as a result of a material misrepresentation of fact by the other parties.
In the case of Wharton v Lewis , there was allegation of misrepresentation. Here in this case, the defendant raises two issues of misrepresentation. The first is the defendant argues that the plaintiff’s brother before the engagement has informed to the defendant that his father would leave property to plaintiff upon the father’s death. As it turns out, the father had already used the money (property) to clear all his debt with the creditors. Secondly, the defendant raises the issue that the plaintiff lives a questionable life in Oxford which subsequently discover to be true. The court then left it to the jury to decide whether or not the defendant was induced to make the promise or to continue the relationship by false representations or willful suppression of the truth. The jury decided for the plaintiff and awarded her £150 in damages.
A Contract to Marry is Not A Contract Uberrimae Fidei
Contract Uberrimae Fidei is one where a party has to disclose to the other all relevant facts and information. For example, an insurance contract is an Uberrimae Fidea contract. Here, before a person entered into a life insurance contract, the insurance company would want to know one’s medical history, the illness family members have contracted, the cause of death of family members and whether one’s occupation is particularly susceptible to certain hazards.
In the case of contract to marry, the contract is not a contract of Uberrimae Fidei and as such the defendant may put forward this as a defence. As such, if A is already engaged to C, he need not inform B at the time he promises to marry B.
In the case of Beachey v Brown , the defendant has raised the defence that the plaintiff had agreed to marry to another person at the time the contract was made. The court then rejected his defence and gave judgment to the plaintiff. Here, Cockburn CJ whilst agreeing that there are many things that the parties need know about his or her partner, he felt that the discovery of the defendant should not entitle the defendant to refuse to fulfill his engagement. His Lordship, however, went on;
“…where it turns out that a woman is of unchaste conduct, which goes to the very root of the contract of marriage, there, from the excess and necessity of the case, the man is released from his contract.”
Here, it implies that there may be extreme situations where the defence may be acceptable.
Moral, Physical or Mental Infirmity
In this defence, the party in default has to prove that the other party has some actual moral, physical or mental infirmity that renders him or her unfit for marriage. Here the infirmity must be discovered either after the engagement contract has been made or that the infirmity had only begun to develop after the making of the contract.
In the case of Jefferson v Paskell , the plaintiff contracted a disease of the cheast soon after her engagement. The doctor diagnosed her as suffer from tuberculosis and as a result she was unfit for marriage on the day fixed for the marriage. The plaintiff went for treatment but the defendant refuse to marry the plaintiff eventhough the plaintiff is declared as healthy. Here, it discovered that the plaintiff is not suffering from tuberculosis and the plaintiff sued the defendant for breach of promise to marry. The defendant argues that he is honestly believed that the plaintiff is unfit for marriage. Philipmore LJ in delivering the judgment stated;
“…in every contract the party who seeks to recover damages for the breach must prove that he or she was ready and willing to perform it. Now admittedly on the date fixed for the marriage…the woman was not ready; she was not fit. The burden of proof was upon her to show that she would be fit within a reasonable time or that she actually became fit before breach. There was no burden upon the man to show that she was unfit. But when the woman admitted that she was not fit on [the date fixed for the marriage] she admitted no more. She did not admit that she had a permanent or even a prolonged illness. The man, if he relied on her having tuberculosis or any other permanent or prolonged illness, had to prove it…”
The court here decides on the favor of the plaintiff and damages of £500 were awarded to plaintiff.
What about the defendant own mental or physical infirmity? Can the defendant raise his own mental or physical infirmity as a defence to a claim for breach of promise to marry? In referring to the case of Hall v Wright , the Exchequer Chamber by a majority held that the plea of own physical infirmity was no answer to the action. Here it was held that defendant own physical or mental infirmity cannot be used as a defence.
CONSEQUENCES OF A BREACH OF PROMISE
Damages can be divided into two categories which are general damages and special damages. General damages refer to damages for the abstract, such as negligence, defamation and breach of promise to marry. Meanwhile special damages refer to damages for specific items and which can be quantified in monetary terms such as medical expenses and wedding preparations.
In the case of Dennis v Senayah , it illustrates the two categories of damages in the context of a breach of promise to marry. Here, the plaintiff alleged that as the result of the breach, she had to endure humiliation and mental anguish. She had incurred expenses to the amount of $870.10 and wishes to claim both general and special damages. Hepworth J in deciding at High Court observed:
“…the damages in an action for breach of promise of marriage are not measured by any fixed standard and are almost entirely in the discreation of the court. They may be of a vindictive and uncertain kind, not merely exemplary manner. No measure of damages can be laid down, save that, while in aggravating circumstances the damages may be large, they should not be fixed as through they were a fine. In assessing damages the injury and prospects of marriage, the rank and condition of the parties and the defendant’s means are all matters to be taken into consideration. The conduct of the parties may properly be considered in aggravation or mitigation of the damages.”
Here the court finds no aggravation circumstances such as an allegation of seduction. There was however naturally mental anguished and humiliation. The court award the plaintiff worth of $1,500 for general damages and Special damages for food, saris and costs of wedding preparations which total to $620.10. By looking at this case, we can determine the difference of the general damages and specific damages.
As a conclusion, in Malaysia we can say that, a breach of promise is a cause of action in court even though there is no specific provision for the breach. Here, the innocent parties in the breach of promise to marry may take an action of claim against the parties in default by apply the principle in Contract law.
The plaintiff first must establish that there was a contract of promise to marriage. By referring to the Contract law, in order for a contract of promise to marry to be rendered valid, there must be offer, acceptance and consideration. As the plaintiff has established there is a contract, the plaintiff must prove that there was breach by the defendant. If the plaintiff succeeds in proving the breach, the defendant is liable under the breach of contract and as such, the plaintiff may claim for general damages and specific damages (if there). However, there are some defence that can be used by the defendant to escape liability from the breach of promise to marry.
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