BETROTHAL (from troth, a variant of truth), or BETROTH/NEXT. The mutual plighting, or pledging, of troth. In modern Eng lish and American law, an engagement entered into by a man and woman for their future mar riage (q.v.). This may be, and usually is, a private and informal transaction, constituting a contract obligatory on both the parties, and affording the usual remedy of an action for dam ages for its breach. See Breach of Promise, under BREAcit.
The consideration for the contract is the mu tual promises of the parties, and either party may call upon the other to fulfill the engagement by marriage at the time agreed upon, or, if no date be fixed, then within a reasonable time. In the Middle Ages, however, the betrothal was an im portant, if not an essential, part of the marriage transaction. It was usually of a ceremonial character, and numerous but ineffectual attempts were made by the Church and the State to com pel its celebration with religions ceremonies. Indeed, at one time in the history of medheval society no contract or engagement of marriage, whether present or future, was deemed to be con summated without the subsequent physical union of the contracting parties. Subsequently. how ever, a distinction was made between a betrothal (sponsalia) per rerba do presenti, which con stituted au irregular hut valid marriage. though
entered into without the sanction of the Church, and sponsatia per rerlm de which became a marriage, without further words or ceremony, upon its consummation by sexual intercourse. The former has become the so-called common law marriage, or, where attended with the sanc tion of the secular or religious authorities. the ceremonial marriage of our own time. The latter, without the physical consummation (which has lost its legal effect), is the betrothal, or marriage engagement, of to-day. It was be cause Anne Boleyn's previous betrothal to the Earl of Northumberland, though never consum mated, was per r-erho rte p MR(' ati. and therefore something more than a broken engagement, that henry VI Ii. was enabled to secure the eaneel lation of own marriage to her. The pres ent state of the law on the subject is expressed in the familiar maxim, Consensus, non coneubi, faeit nuptias—"It is the agreement and not the cohabitation that makes the marriage." Consult Pollock and Maitland, History of English Laic (2d ed.. London and Boston, 1899) ; and the authorities referred to under the title ALtanrAcE.