BREACH OF PROMISE.—This is the name given to an action for damages for breach of a contract of marriage. It is therefore, strictly speaking, an action founded upon contract, but nevertheless it partakes so much of the nature of a personal action as to be within the doctrine of actio personalis moritur cum persona (q.v.). Action may be brought, however, by the personal representatives of a deceased party, when damage has been specially sustained by the property of the deceased as the contemplated result of the action of the parties at the time of the promise. Either the man or woman may bring an action for breach of promise.
The contract and its breach.—An infant cannot make such a promise as will render him liable to an action in case of breach, nor can he ratify it upon attaining his majority ; he must make another promise. Nor can a married man, if the woman knows of his marriage at the time of the promise. The promise need not be in writing, but it must be corroborated in some material particular ; the presentation of an engagement ring, an introduction to the plaintiffs family in the character of a betrothed, a remaining silent when charged with the promise, are instances of what may be corroborative facts. A mere promise without acquiescence by the other party, an offer without acceptance, would not constitute a contract. Marriage is apparently not so important an undertaking as effecting an insurance ; for in such a case complete openness and candour is of the essence of the contract. In marriage a promise may be unwittingly made to a lady just released from a lunatic asylum, or from prison, or to one suffering from an incurable disease; if the offer is accepted, the promiser must go through with the marriage, or run the risk of an action. But though this is the case, the promisee may not induce the promise by false and fraudulent misrepresentations ; to do so would be to open a door for the escape of the promiser. A lady of doubtful antecedents should remain silent, unless they have reference to her unchastity, for such an antecedent undisclosed to and not otherwise known by the promiser would release him from his engagement. After the promise has been made, the
lady must continue to have a care for her moral character, but her subsequent health is a matter of indifference. On the other hand, it is no defence to an action that the defendant is too ill to marry—so ill even that marriage would mean death; but if such a defence were established, the damages would be probably very light. If no date has been agreed upon for the marriage, one party may require the other to fulfil the promise, and to marry within a reasonable time.
Damages are generally a rough estimate of what the plaintiff has financially suffered through the promise not being performed. If the de fendant is a lady, whether she is rich or poor, it is doubtful whether a jury would award the plaintiff very substantial damages; but if the circumstances showed that he had really suffered serious damage, there is no reason why he should not recover some recompense. But almost invariably the plaintiff is a lady, and the law considering that marriage is itself an advancement and advantage to her, damages to some extent must always be awarded. Riches and social position of the defendant constitute an important item in her favour ; but against this the defendant may show that he is in bad health, much older than the plaintiff; has dissolute habits, a bad character, and rough and brutal manners—these facts, in their turn, tell against heavy damages. Again, the plaintiff may rove seduction by the defendant, or the defendant may allege that the plaintiff is an immodest woman; to fail to prove either of these allegations would probably increase the damages against the party preferring them. The defendant may also state that he is willing to marry the plaintiff, and if the jury believe him, and that the willingness is bond fide, it will probably diminish the damages.