Breach of Promise to Marry

This tort — straight out of Gilbert & Sullivan — turns out to remains theoretically alive in a few states, though apparently very rarely litigated. And though some cases involve lawsuits over the cost of the canceled wedding, in principle the damages can be a good deal broader. Bradley v. Somers (1984) tells us that,

Damages for breach of promise to marry are confined to those relating to the position the rejected spouse (Christine) would have held had she married the appellant. She is entitled to recover for the loss of the pecuniary and social advantages of the promised marriage. Also, her mental anguish, humiliation, and injury to health and psyche are elements of damages. In addition, she may recover for losses sustained from expenditures made in preparation of marriage. The jury may consider the monetary value of a marriage which would have given Christine a home.

And a case from a few months ago, Campbell v. Robinson (S.C. App. 2012), reaffirms that Bradley v. Somers is still the law in South Carolina.

One thing that’s interesting about the tort is just how social change has upended the theory behind it. Even as to the other “heart balm” torts, such as alienation of affections, there is some plausible argument for retaining them. Alienation of affections, for instance, can be seen as a form of aiding and abetting of adultery, which is conduct that seriously harms another. (Note that disputes about untangling property arrangements that were made in contemplation of marriages, whether related to engagement rings, jointly bought real estate, or what have you, are handled under contract and property law rules that have not been much affected by the abolition of the heart balm torts.)

But breaking an engagement, it seems to me, has turned from something that was once a tragedy — something that might have ruined a young woman’s social and financial prospects — into something that most people would regard as a fortunate escape. To be sure, the breakup remains heartbreaking, and a jilted bride might much rather that the groom continued to love her and want to marry her. (In principle, the tort would presumably be sex-neutral, but let me use the traditional genders for convenience of the discussion.) But given that the groom no longer wants to marry, it seems much better to avoid what is likely a doomed marriage than to go through with it and then deal with a likely divorce. Better figure out the incompatibility before the wedding rather than after. And I suspect that in virtually no social circle would the jilted bride be seen today as damaged goods and therefore unmarriageable.

In any event, this is doubtless why the tort has been largely abrogated nearly everywhere, and probably why it has fallen into disuse in most places. My guess is that South Carolina juries would feel much less sympathetic to a plaintiff today than they would have been a century ago, for the very reasons I mention. “She should count her blessings,” many jurors would likely feel as to any claimed damages from the lost marriage, and probably even from any heartbreak damages. (Wedding expenditure damages, and possibly emotional distress damages stemming from having to cancel a wedding at the last moment, if that’s what happened, might be a different matter.) At the same time, maybe not all jurors — I found a $150,000 breach of promise to marry verdict in Georgia (Shell v. Gibbs (2008)), though that seemed to be largely based on claimed lost income from quitting her job to move in with her fiancee, and not based on the lost benefits from the marriage.

In any case, this seems like an interesting illustration of how law interacts with social norms. Let me close with Gilbert & Sullivan’s take on damages:

PLAINTIFF (embracing him rapturously).

I love him — I love him — with fervour unceasing,
   I worship and madly adore;
My blind adoration is always increasing,
   My loss I shall ever deplore.
Oh, see what a blessing, what love and caressing
   I’ve lost, and remember it, pray,
When you I’m addressing, are busy assessing
   The damages Edwin must pay!
      Yes, he must pay!

DEFENDANT (repelling her furiously).

I smoke like a furnace — I’m always in liquor,
   A ruffian — a bully — a sot;
I’m sure I should thrash her, perhaps I should kick her,
   I am such a very bad lot!
I’m not prepossessing, as you maybe guessing,
   She couldn’t endure me a day;
Recall my professing, when you are assessing
   The damages Edwin must pay!