BREACH OF PROMISE.

Auckland Star, Volume LXVIII, Issue 150, 26 June 1937, Page 27 (Supplement)

BREACH OF PROMISE.

Law Declared Obsolete.

(By CHRISTINE COMBER.)

THE changing status of women and their gradual emancipation from

dependence on husbands, fathers, or charitable kinsfolk gives room for thought concerning some aspects of the law as applied to women.

One of the most important of these considerations is the breach of promise action. Again and again it has evoked from Bench and Bar comments that do not indicate excessive sympathy for the jilted one. Indeed, an increasing number of people are of the opinion that it is time that the law was amended, so that only tangible material things may be cited as "damages," exclusive of wounded pride, lacerated feelings and scorned adoration. It is felt that the existing laws weight the scales too heavily in favour of the "gold-digger."' "Do" right and fear no man; don't write and fear no woman," runs the time-honoured joke. But there are times when it becomes more than a joke for the defendant who hears his passionate billets doux read to an unimaginative Court and a derisive public.

The history of breach of promise litigation as we know it begins with the reign of William JU. Until 1754 the unwilling party to a marriage could be compelled at law to carry out the contract! In those days, doubtless because a woman'* property became her husband's om, marriage, the plaintiff was not infrequently a man. Now, however, though he still has the legal right to bring such an action, custom has ruled that it is "not done." Indeed, some legal textbooks state at the beginning of the section dealing with breach of promise that the word "plaintiff," except where otherwise stated, shall be understood to refer to a woman.

In the eyes of the law a promise to wed is exactly the same in principle as an agreement regarding the purchase of a piano or a lawnmower. If either fiance or buyer fails to comply with the terms of the arrangement damages may be obtained against him in a Court of law.

In the case of the lawnmower the value can be easily estimated. But how is the value of lowered prestige and spoilt chances of matrimony to be decided? The social and financial status of both parties, the "out of pocket" expenses incurred for trousseau or household linen, and the pecuniary expectations of the bride-to-be all have to be weighed and assessed. And since no two cases are alike the way of judge and jury is full of difficulties. Effect on the Children. There are many responsible people of both sexes who feel that the emancipation of woman and her consequent independence of marriage should have rendered the breach of promise action obsolete. This view was shared by the late Mr. Justice McCardie, who felt that anything that tended to force people to marry against their better judgment was likely to be injurious not only to the couple themselves, but also to their children.

And it must be admitted that the fear of such an action must force numbers of reluctant males to the altar, and hundreds more to redeem, at a heavy cost, the sentimental letters of courtship.

To many men and women of refinement it is unthinkable that a girl should so far forget her self-respect as to take money from a man who had jilted her. They would prefer her to "keep a stiff upper lip," and, considering herself so much wiser in experience, fill the gap in her life with study or hobbies, sport or new friends. She is not to be pitied for having given her heart to a worthless creature, so much as congratulated for discovering before marriage that she had made a mistake.

As the law stands it gives a woman a power over her fiance which, in many cases, can only be regarded as disproportionate.

There is the case of a man who met a girl one month, became engaged to her the following month, withdrew his offer the next, and later paid for his impulsiveness to the extent of £1000.

Another concerns a man over 80 and a girl in her late twenties. The latter appears to have admitted that she had no affection for the man, but was prepared to marry him at the time arranged. She received £25,000 compensation when he failed to keep his promise to wed. Here she had not the excuse of a "broken heart," yet the

Court could take into account only the fact that a contract had been made and broken. The Arguments Against. There are good arguments against sweeping the law away altogether. In the first place there would be nothing to keep a man from making love to as many <jirls as he pleased with no intention of marrying any <>f them. Further, a woman who has given up the beet years of her life to a man and so lost other chances of marriage may reasonably be judged worthy of monetary help. Particularly is this so in the case of poor persons who have expended on a "trousseau" or household linen, money that they can ill afford. In some countries a girl is entitled only to these actual "out of pocket" expenses. It has been argued in Court that damages for a "trousseau" are unfair, because the girl obtains the value in money for articles she is allowed to retain and subsequently make use of. This, of course, depends on whether the articles she bought were of a more expensive quality than those she would normally have purchased, in which ease a hardship has been suffered. The main argument in favour of an amendment of the law as regards breach of promise is that it provides unlimited scope for the "gold digger." Most of the women it exists to protect are too proud to take advantage of it. It is hard to understand how a young girl, with all her life and opportunities before her, can bring such an action against a man whom she professed to love. Perhaps it is a desire for revenge —for "hell hath no fury like a woman scorned." Perhaps a hope that he will marry her rather than let the case come before the Court. In any case it seems time that some amendment was made to a law that by its present nature is degrading to womankind in attaching altogether too much importance to the capture of a husband. Girls nowadays have demonstrated that they can earn their own living even if no husband is forthcoming. So that, unless there is material need for redress, it is farcical to suggest that girls are entitled now to the maudlin pity and the same "damages" as in the days when failure to marry was regarded as a family disgrace and a personal humiliation.