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A Common Law Contract:
The Promise to Marry

The “promise to marry” is one of the oldest common law contracts of all time. Of course, as with all contracts, there are times when the “promise”, and thus the contract, is broken. 

Wikipedia describes a contract as a voluntary arrangement between two or more parties that is enforceable at law as a binding legal agreement.

Here is a story for you: 

Boy, in search of his soul mate, meets girl. It happens to be via an online dating site but that part is not really relevant to the story. 

They date for 3 weeks.  Boy decides Girl is the love of his life.

Boy spends an admittedly ridiculous amount of money on an engagement ring ($16,500) and proposes. Girl accepts the marriage proposal and, of course, accepts the ring. We have our common law contract. 

Unexpectedly to the Boy, a year and a half into the engagement, Girl calls if off. 

These things happen.

Common Law Contract:
She Also Keeps the Expensive Ring 

The problem for the boy is that the girl also keeps that very expensive ring. 

Well, it was hers after all, wasn’t it? Or was it? 

Boy is not happy about any of it and wants the ring back. 

Girl refuses. 

The litigation begins.

The Breach of a promise to marry is the flip-side from the original common law contract dispute that we have known as “breach of the promise to marry.” 

In the olden days, the common law contract that was breached occurred when, after an engagement, the man failed to follow through with marrying the woman he was engaged to. 

A common law contract has these three things:  offer, acceptance and consideration. There must also have been a clear understanding between both parties that there was a marriage proposal and acceptance of that proposal. In essence, the parties would become engaged and both understood this to be the case. 

Dating back as far as medieval times, when a man made an offer of marriage and a woman accepted (offer and acceptance) and she accepted his token of affection (nowadays an engagement ring) (consideration), then there was deemed to be a valid and legally binding contract. There was now an engagement and there would be a wedding. 

If the man were to subsequently change his mind, he would be said to be in "breach" of this promise, resulting in a breach of the common law contract. This action could become the subject of a law suit (well, maybe they didn’t do the law suit part in the medieval times, but you get the idea). 

The reason why it was important for so many women that the man follow through on his promise was because she may have let other possible suitors go by the way side while being engaged. By the time she found out the original guy was not going to marry her, the other suitors may have moved on to other eligible candidates for marriage. 

She was then left not having married and to possibly living a life as a  “spinster.” This would often result in there being nobody to take care of her financially and would almost certainly mean she would not be having children. 

As you can see, the original claim of “breach of a promise to marry” related to when the man backed out of his engagement to a particular woman. The consequences for women in these older times could be significant.   

Back to Our Boy Meets Girl Story

So, let’s go back to our scenario regarding the expensive engagement ring. 

Is this a case where there is a “breach of a promise to marry?” 

What would be the damages be? 

Now, while we may feel (a little bit) bad for Boy who spent oodles of money on the engagement ring, we need to ask ourselves what losses has he actually suffered (that is, other than the crushing debt he has incurred to buy the ring in the first place)? 

Have other women passed him by thus making him lose his chance at future potential mates less likely? Yeah, we doubt that too. 

So, now that we got that out of the way, should Girl, who has pulled out of the engagement, return the engagement ring? Or should Girl be able to  keep it as a gift? 

What would you do?

Written by Val Hemminger, lawyer at Hemminger Law Group Westshore