INTRODUCTION BETROTHAL PROMISE WORDS/CONDUCT /WRITING CAPACITY CONSENT CONSIDERATION

CONSIDERATION Offer – promise to marry within reasonable time after pl. arrival in Ireland HARVEY V JOHNSTON Acceptance – pl. went to Ireland as requested Def. failed to carry out his promise Pl. sue for breach of promise to marry Held: went to Ireland as requested -is a good consideration

damages- rarely brought After ww 2, action for damages- rarely brought -difficult to prove Old Common law- Breach of the promise- Action for damages POSITION IN ENGLAND After 1970 -- now . Action for breach of promise to marry has been abolished by the Law Reform (Misc.Prov.) Act 1970

Promise to marry to under the Common law Made by a bachelor Made by a married man

PROMISE MADE BY A BACHELOR Enforceable - supported with valuable consideration. If breach of promise to marry, action can be taken against him. Cases: Harvey v. Johnston Frost v Knight

PROMISE MADE BY A MARRIED MAN Unenforceable as it is against public policy, even though it is made upon conditions such as: i) upon the death of promisor’s spouse ii) upon a divorce being granted. - breach of promise , no action can be taken against him unless it falls under the exceptions.

Wilson v. Carnley Promise made by a married man during the lifetime of his wife to marry a woman, after the wife’s death is unenforceable as it is against public policy. Void ab anitio and therefore no action can be taken against him. Spiers v. Hunt Held: Such contract is against public policy and moral and not to be enforced. CASES

EXCEPTIONS 2) Promise is made after the decree nisi is pronounced, to contract a marriage after the decree being absolute. Case: Fender v. St Johnson Mildmay. 1) The plaintiff has been deceived by the promisor / false declaration. Case: Shaw v Shaw Judgement was given in favour of the plaintiff who has been deceived by the promisor.

3. When a man is permitted to have a plurality of wives by his personal law Nafsiah v Abdul Majid

Position of betrothal in Malaysia - No provision in the LRA and other specific legislation. -General principles of a contract is governed by the Contract Act 1950 - sections 10, 11 & 24. -Therefore, may apply common law principles by virtue of s. 3 & 5 of Civil Law Act 1956 - No need to be evidenced by writing . So long as a promise is supported by some kind of valuable consideration, then it is enforceable.

CASES Case: Doris Rodrigues v Balakrishnan Application of common law principle through s.3 & s.5 Civil Law Act 1956 Case:Nafsiah v. Abdul Majid Whether action can be taken against the defendant who is a married man, for breach of promise to marry. Held: There is a breach of promise to marry and action can be taken against him since under his own personal law, he is entitle to have a plurality of wife. CASES

Case: Mary Joseph Ariokiansamy v A.G Sundram Held: Action can be taken against him despite the fact that he was a married man since she was deceived by the defendant who represented himself as a widower. A promise of marriage made by a Hindoo man to a Christian girl is actionable at law, as the status of a Hindoo does not prevent his contracting a valid marriage with a Christian. If a disability due to status in fact exists, and is known to the defendant, but not known to the plaintiff it will not save the defendant from the consequences of an action for breach of promise of marriage.  

Other cases: -Oh Thevesa V Sia Hok Chia [1992] 1 MLJ 215. -Wong Chuan Wah V Kok Kam Chee [2008]  3 CLJ 510 -Nagamah a/p Subramaniam v Ponnusamy a/l Rajoo [2008] 6 MLJ 152  

The only remedy is action for damages It is mutual – either man and woman can sue . Damages not measured by fixed standard, and normally depending on the facts and circumstances of the case. Eg. The plaintiff is pregnant. REMEDY