FAMILY LAW Flashcards
A1
Engagement
agreement between two people to either enter into a marriage or a civil partnership →
agree to marry at a determinable date or within a reasonable time from the date of the engagement.
An engagement contract is
sui generis → of its own nature, it is not a standard contract because
specific performance cannot be ordered
Legally and factually legitimate (lawfulness)
civil marriages → both parties should be single, see
reference to Friedman v Harris 1928 CPD 43 → a promise to marry from a married person to marry a
third party is void under civil law.
What is the legal nature of an engagement contract, and why is it considered sui generis?
An engagement contract is considered sui generis, meaning of its own kind, because it cannot be enforced through specific performance. This is due to the unique nature of engagement contracts where the court cannot order parties to marry as a resolution to a breach of contract.
What are the legal requirements for concluding a valid engagement contract?
To conclude a valid engagement contract, there must be an offer by one party and acceptance by the other. Both parties must be legally and factually legitimate, meaning they should be single for civil marriages. Additionally, there must be a meeting of the minds or consensus between the parties.
Explain the significance of capacity to act in the context of engagement contracts.
Capacity to act refers to both parties having the necessary legal capacity to enter into an engagement contract. For minors, parental consent is required, and for those under 18 for boys and 15 for girls, ministerial consent is necessary. Without the required consent, the engagement is conditionally valid.
What constitutes lawful termination of an engagement contract?
Lawful termination of an engagement contract can occur through the conclusion of marriage, death of either party, mutual agreement, or withdrawal of parental consent for minors. Additionally, unilateral lawful termination may happen with sound reason or iusta causa.
What are the consequences of unlawful termination of an engagement contract?
Unlawful termination of an engagement contract amounts to breach of promise. The offending party may be held liable for damages or satisfaction. Damages may be claimed for monetary loss suffered due to the breach, while satisfaction may be sought for non-pecuniary loss such as mental pain and suffering.
Explain the equal fault rule and its application in engagement contracts.
The equal fault rule states that if both parties are equally at fault in a breach of promise situation, neither party can claim damages or repayment. However, courts may apply this rule with flexibility, considering factors like public interest and prevention of unjust enrichment.
Describe the role of consensus in the formation of an engagement contract.
Consensus, or meeting of the minds, is essential for the formation of an engagement contract. Factors affecting consent include material mistake, misrepresentation, duress, and undue influence. Material mistake or misrepresentation can render the contract void.
What factors are considered for calculating damages in cases of breach of promise?
In cases of breach of promise, damages are calculated based on actual expenses incurred or prospective loss suffered due to the breach. Real damages cover monetary loss directly caused by the breach, while prospective loss considers the advantages the proposed marriage would have brought to the plaintiff.
Discuss the legal implications of engagement termination by mutual consent.
When an engagement is terminated by mutual consent, parties are generally required to return all gifts except small tokens of affection. However, if the termination is wrongful, the innocent party may retain gifts and set off their value against damages.
What is the significance of the principle of positive interesse in engagement contracts?
The principle of positive interesse states that the wronged party should be put in the same financial position as they would have been if the contract was fulfilled properly. However, this principle is not applied unconditionally in engagement contracts due to their unique nature.
Explain the concept of iusta causa in the context of lawful termination of engagement contracts.
Iusta causa, meaning sound reason, is required for unilateral lawful termination of an engagement contract. It refers to circumstances or facts that justify termination without exposing the terminating party to claims for damages or satisfaction.
What is the significance of engagement gifts, and how are they treated upon termination of an engagement?
Engagement gifts signify the seriousness of the intention to marry and are subject to specific rules upon termination of an engagement. Generally, gifts given in anticipation of marriage must be returned if the engagement is terminated. However, gifts given as small tokens of affection may be retained.
