THE ENGAGEMENT

(PROMISE OF MARRIAGE)
Associate Professor LLD Anca Monica ARDELEANU
UNIVERSITY OF BUCHAREST
 GENERAL CONSIDERATIONS

The institution of engagement appeared as a need to

create a juridical context for the future spouses to get
to know each other;

The evolution of this institution was always related to

the culture and the society
 GENERAL CONSIDERATIONS
There are two different points of view regarding the promise of
marriage:
the engagement may be seen as a simple fact of the
private life (as it was in the former Romanian Familiy
Code),
or
the engagement may be seen as a juridical institution
specifically regulated by the law (as it is now in the
Romanian Civil Code)
 OLD REGULATIONS
- JEWIS PEOPLE -

For the Jewish People the marriage did not have a religious character. There
were two moments: the engagement (Eres) and the wedding (Chatuna).

The engagement was represented by a contract signed by the parents/bigest

brother of the girl and the parents of the boy. Following the conclusion of the
contract, the boy had to pay the buying price for the future wife. Rarely the
price could be replaced with work (Iacov worked for Rahela for 7 years), or by
heroic acts (the case of King David).
 OLD REGULATIONS
- JEWIS PEOPLE -

The tradition was that the boys parents were searching for their sons wife.

After the engagement the bride did not leave her parent's home until marriage and
she was obliged to keep her chastity. Although she was only engaged, she was
counted as the fianc's wife and, if she broke the contract, she was killed with stones.

The fianc had the right to undo the contract, and for that he had to give a
separation card".

After the end of the engagement period, usually lasting a year, marriage took place.
 OLD REGULATIONS
- RO M A N L AW-

Justitians Code regulated the institution of engagement

The engagement preceded marriage and represented a promise, a
solemn commitement assumed by girls pater familias (the head of the
family)
In the Roman law, the engagement was known as sponsalia and
represented a contract between two pater familiae through which they
sealed their mutual economic and political interests
 OLD REGULATIONS
- RO M A N I A N L AW-

Old Romanian regulations also provided rules for future spouses

who wanted to get engaged.
The engagement (the promise) was regarded as a contract that
gave the obligation for fiancees to get married.
For the engagement to be valid, there was stipulated a minimum
age the man had to be at least 14 years old, and the woman at least
12 years old. There was also necessary to have the parents consent.
 OLD REGULATIONS
- RO M A N I A N L AW-

The engagement performed with a religious ceremony was

considered to have the same juridical status as a real marriage, and
could only be broken for certain reasons.

Once the man and woman got engaged, they had to get married
within a maximum of 2 years.

The engagement was considered expired if the fiancees were not

married within 3 years from the engagement date.
 - ROMANIAN LAW-
The Romanian Civil Code addopted in 1864 no longer regulated the
engagement institution, since the Romanian regulations from the 17th
century to the 19th century gave it a religious conotation.

Later on, The Romanian Family Code addopted in 1954, detached

from the Civil Code, which entered into force on 1 February 1954, also
included no regulation on the engagement institution
 - ROMANIAN LAW-

The new Romanian Civil Code addopted in

2009 and entered into force in 2011 has
taken over some of the old provisions and
dedicates to the engagement institution.

5 articles (266 270)

 DEFINITION
According to the art. 266 (1) Civil Code, the engagement is a mutual
promise of marriage.

The national juridical literature gave more detailed definitions of

engagement, such as:
A mutual, optional, pre-marital agreement, setteled in
consideration for the future marriage (Oprescu, 251);
 DEFINITION
The international juridical literature also gave different
definitions for the engagement:
A sentimental and intellectual agreement in
consideration of a future marriage, a period of
reflection in which the fiances test their feelings
and learn to know each other (Malaurie & Ayns,
50)
 NOTION
The term engagement can be used in a triple sense:
JURIDICAL INSTITUTION
the set of legal rules that governing the engagement
JURIDICAL ACT
The act that the man and women conclude promising each other to
get married
JURIDICAL STATUS
The status of those who got engaged comprising of the full set of
rights and obligations.
 ENGAGEMENT

Contract, Fact or Act ?

 ENGAGEMENT - CONTRACT

Agreement common will of both fiances to get engaged

Emergence of rights and obligations

On the other hand

Marital liberty

The liability is committed only in the case of abusive breach of

promise of marriage.
 ENGAGEMENT - FACT
Although some authors consider engagement as a juridical fact, in
Romanian law it cannot be seen likewise.

The juridical fact is a fact that cannot produce legal effects

In French doctrine and jurisprudence, the engagement does not have a

legal foundation, arguing that the marital promise is not binding,
correlated with the interest of protecting the free consent expressed at
the beginning of the marriage
 ENGAGEMENT - ACT

There is no doubt that the engagement is a legal act since the

Civil Code states that for the engagement the fiances have to
meet the same requirements as for the conclusion of marriage.

The sanction of non-meeting of the substantive and form

conditions represents the nullity of the act
 LEGAL CHARACTERISTICS
1. ENGAGEMENT IS A UNION BETWEEN TWO
PEOPLE OF OPPOSITE SEX
Art.266 (5) - Engagement can only be concluded between a man
and a woman

2. ENGAGEMENT IS MONOGAMOUS
Although this feature is not explicitly provided anywhere, it is
obvious that as long as marriage has this characteristic, the
engagement has to have it
 LEGAL CHARACTERISTICS
3. ENGAGEMENT IS FREELY CONSENTED
Consent must be free, unaffected by vices

4. ENGAGEMENT IS VALID WITH NO FORMALITIES

There are no formalities to be done in order for the engagement to
exist

5. THE ENGAGEMENT ENDS WHEN MARRIAGE IS

CONCLUDED
There is no duration of the engagement
 LEGAL CHARACTERISTICS
6. THE ENGAGEMENT IS PERFORMED IN
CONSIDERATION OF MARRIAGE
In any situation where the purpose would be other than marriage,
the engagement could be canceled for fiction
7. THE ENGAGEMENT IS BASED ON THE EQUAL
RIGHTS AND OBLIGATIONS OF THE TWO FIANCES
The principle of equality between men and women is found in all
spheres of social life and is guaranteed by the Constitution of
Romania
 S U B S TA N T I V E C O N D I T I O N S
F O R A VA L I D E N G A G E M E N T
The engagement is a legal act that, once concluded, leads to a certain legal status
for the fiances and that can produce in certain conditions some legal effects.
For these legal effects to be produced it is necessary that the engagement to be
valid.
The validity of the engagement depends on meeting the legal requirements which
can be positive or negative (impediments).
According to the Romanian Civil Code the engagement has to meet the same
requirements as the marriage (except for the medical opinion and the authorisation
from the specialised court)
 POSITIVE REQUIREMETS
These conditions have to exist for the engagement to
be valid:

1. The difference in sex

2. Consent for the engagement

3. Minimum age required

4. Mutual communication of the state of health

THE DIFFERENCE IN SEX

According to art.266 (5) Romanian Civil Code, an

engagement can only be concluded between a man
and a woman

This requirement is also provided for the

conclusion of marriage (art.271)
 CONSENT FOR THE
ENGAGEMENT

The consent for the engagement is represented by the

manifestation of will of the man and of the woman, expresses in
consideration of marriage, materialized in the form of mutual
promises to conclude the marriage.

The legislator did not foresee a certain form to embody the

manifestation of will, so that it only needs to prove the intention of
the parties to get married
 CONSENT FOR THE
ENGAGEMENT

For the consent to be valid, it has to be:

free,
indubitable,
current,
personal,
simultaneous.
 VICES OF CONSENT

Error
Is a vice of consent only if relates to the physical
identity of the other person (e.g. twins)

Fraud
Is a vice of consent considering the induced error

Violence
Is a vice of consent through the fear
 AGE REQUIRED
Considering that the engagement requirements are the same with the
requirements for marriage, that means that the minimum age for getting
engaged is 18 years old for both woman and man.

By exception, can get married the man and woman who are at least
16 years old and have the consent of their parents and solid reasons.
There is no maximum age limit, and also there is no age difference
between fiances.
 M U T UA L C O M M U N I C A T I O N
O F T H E S TA T E O F H E A LT H

According to the provisions of the Romanian Civil

Code, the marriage cannot be concluded unless both
future spouses communicate to each other their
state of health through a medical certificate.
 NEGATIVE REQUIREMENTS
(IMPEDIMENTS)

1. Legal status of married or engaged person

2. Consanguinity and affinity

3. Legal status of tutor of one of the fiances

4. Insanity and mental debility

 L E G A L S TA T U S O F M A R R I E D
OR ENGAGED PERSON

Bigamy is a crime

Cannot get married the person who is already married

For same reasons cannot get engaged the person who is already
engaged, or already married
 CONSANGUINITY AND
AFFINITY

Relatives in straight line cannot marry each other

regardless the grade, and relatives in collateral line cannot
marry each other up to grade 4 inclusive.

However, for solid reasons and with the authorization of

tutelary court relatives of grade 4 can get married.

Same rules apply for affinity

L E G A L S TA T U S O F T U TO R O F
ONE OF THE FIANCES

According to the provisions of Romanian

Civil Code (art.275) the marriage between
the guardian and the minor person under his
guardianship is forbidden
 I N S A N I T Y A N D M E N TA L
DEBILITY

According to art. 276 Romanian Civil Code, the

persons who suffer from insanity and mental
debility cannot get married.

Thee same interdiction applies for those who

want to get engaged.
 FORMALITIES

According to Romanian Civil Code there are no formalities

required for a valid engagement and this can be proven by any
means of proof

For an engagement to be valid it is enough that the man and

the woman give their consent in a conclusive way, without
ambiguity
 ENGAGEMENT VS.
C O N C U B I NA G E

The engagement represents the mutual promise of marriage and

produces some legal effects. It does not necessarily involve
cohabitation but does not exclude it.

The concubinage is a simple fact of life, which is not legally

recognized, does not produce legal effects and is characterized by the
life shared by the partners but does not involve a marriage
commitment from them.
 ENGAGEMENT VS.
C O N C U B I NA G E

On one hand engagement and concubinage does

not exclude one another

On another hand someone cannot assume that if

two partners live together as concubines, they are
necessarily fiances.
 PROOF OF ENGAGEMENT

Art. 266 (3) Romanian Civil Code stipulates that the

engagement may be proven by any means of proof admitted
by law.
Documents
Witnesses
Assumptions
Confession
Examination
 C E RTA I N DA T E S F O R
ENGAGEMENT CLOSURE

The moment when the future spouses submit the marriage

statement

The moment the future spouses choose the matrimonial regime

for their marriage

The moment the future spouses choose to sign a document stating

their engagement
 ENGAGEMENTS LEGAL
EFFECTS

In Romanian Civil Code are nor stipulated the effects

produced by the closure of the engagement, but the effects
produced by the breach of the promise of marriage.

Once concluded, the engagement produce only some moral

effects, in accordance with the christian principles.
 ENGAGEMENTS LEGAL
EFFECTS
Prior of the new Civil Code entering into force, the Romanian priests
could perform the religious ceremony of the engagement separately
from the religious ceremony of the marriage.

After the new regulation entered into force, The Holy Council decided
that the engagement ceremony should only be performed in the same
time with the marriage ceremony, in order not to create confusion and
to produce legal effects.
 EFFECTS PRODUCED BY THE
BREACH OF PROMISE OF MARRIAGE

Two situations:
When the ending of engagement is the result of the
agreement of both fiances;
When the ending of the engagement is the result of
the single decision of one of the fiances.

Two categories of effects:

On goods
On damages
EFFECTS OF BREACH OF PROMISE OF
MARRIAGE ON GOODS RECEIVED

According to the art. 268 Romanian Civil Code In case of

breach of promise of marriage, the gifts that the partners have
received in consideration of the engagement or, during this period, for
the purpose of marriage, except for the usual gifts, are subject to the
refund. The gifts are to be returned in kind, or, if not possible, the
former fiances have to pay the equivalent of these goods.
 EFFECTS OF BREACH OF PROMISE OF
MARRIAGE ON GOODS RECEIVED

As we can see, the goods received in consideration of the

engagement or, during this period, for the purpose of
marriage are to be returned no matter which is the cause of
the breach of promise and no matter if this is the effect of
a common agreement or of a singular decision.
 EFFECTS OF BREACH OF PROMISE
OF MARRIAGE ON GOODS RECEIVED

The only situation when the goods described before

are not subject for the refund is when the
engagement ends due to the death of one or both
fiances.
EFFECTS OF BREACH OF PROMISE OF
MARRIAGE ON GOODS RECEIVED

Considering that the law does not specify, we can

think that even the gifts that the fiances gave one
another may be subject for refunding, as well as the
gifts received by one or both of the fiances from a
third party.
 EFFECTS OF BREACH OF PROMISE OF
MARRIAGE ON GOODS RECEIVED

The regulation on refunding the goods received does not represent a

sanction for the breach of promise of marriage.
It is funded on the principle of the enrichment without a fair cause.
Even the one who breaches the promise of marriage is entitled to
ask for the restitution of the goods.
Are subject of refunding only those gifts which have a greater value
than the usual gifts
EFFECTS OF BREACH OF PROMISE OF
MARRIAGE ON GOODS RECEIVED

In case the fiances do not refund the goods,

the right to sue them for refunding the
goods expires in one year after the breach of
the promise of marriage.
 IN CASE OF LITIGATION THE
J U D G E H A S TO E S TA B L I S H

1. IF the man and the woman were engaged, otherwise there is no right
to ask for refunding of goods;

2. IF the good was given as a gift during the engagement or in

consideration of marriage;

3. IF the engagement ended by their mutual consent, or by the singular

decision of one of them if the engagement ended by the death of
one of them, there is no right to ask for refunding of goods;
 IN CASE OF LITIGATION THE
J U D G E H A S TO E S TA B L I S H
4. IF the good that is subject of refunding has a greater value than an
usual gift;

5. IF the good that is subject of refunding is in the possession of the

one who received it. If so, he/she has to refund it in kind. If the good
does not exist anymore, he/she has to refund the equivalent of that
good;

6. IF it was not more than a year since the breach of the promise of
marriage, otherwise the right for suing expires
 RESPONSIBILITY FOR THE BREACH
OF PROMISE OF MARRIAGE

According to the art. 269 Romanian Civil Code,

The party who abusively breaches the promise of marriage may be

liable to compensation for the expenses incurred or contracted for
marriage insofar as they were appropriate to the circumstances and for
any other damage caused.

The party that with guilt caused the other to breach the promise of
marriage, may also be liable for damages
 RESPONSIBILITY FOR THE BREACH
OF PROMISE OF MARRIAGE

Not all the breaches of promises of marriages can attract the

responsibility of the one who has this initiative, but only the abusive ones.

The fiances have no obligation for concluding the marriage, and can
breach the promise of marriage at any time, but the way the breach is
made attracts the liability or not.
The liability depends on the way in which the breach of promise of
marriage occurred abusive or not. There is no interest in the reason for
the decision.
 COMPENSATIONS

Determining responsibility for the breach of

the promise of marriage leads to the
payment of compensations for the damages
caused (material and/or moral).
 EXPENSES - EXAMPLES

Booking the restaurant for the wedding;

Buying the bridal gown
Purchasing a package of tourist services for the honeymoon;
Paying an amount of money for buying an apartment;
Furnishing a house to turn it in a family home;
Quitting the job by the one of the future spouses in order to move in
another city with the other future spouse.
 L I A B I L I T Y F O R PAY I N G T H E
EXPENSES - CONDITIONS
The Judge may order the payment of the damages caused if:

a) There is a moral damage;

b) The fianc who breached the promise of marriage din that

in an abusive manner;

c) The fianc left did not have any kind of guilt in the breach
of the promise of marriage.
 FRANCE

An engagement is not regarded as a legally binding contract and no

action should be taken for the termination of an engagement as such.

A delictual action (founded on Article 1382) may, however, be

taken, not only by an engaged person but also by anyone else, where
he or she has suffered loss by reason of the fault of an engaged
person in terminating the engagement, or in behaving in such a
manner that it was terminated with just cause by the other party.
 FRANCE
Presents given by one engaged person to another must be returned if the
engagement is terminated for whatever reason, except that a fiance may retain
the ring unless the engagement has been terminated by reason of her fault. The
damages that may be claimed in the delictual action extend to expenses that the
injured party may have paid.
They also include dommages morals for such matters as psychological injury
or damage to reputation. But since the action is not one for breach of contract,
damages may not be recovered for loss of bargain in failing to marry a rich
person.
 GERMANY

The Civil Code (section 1298) provides that compensation in the

case of non-fulfilment of a promise to marry is in general confined to
damage caused by the actual expenses incurred in expectation of the
marriage.

The engagement creates only a moral obligation to fulfill the

promise of marriage.
 GERMANY

Where an engaged person withdraws from the engagement, he must

compensate the other person and the parents of that other person for any
losses caused by expenses incurred or by obligations undertaken in
expectation of marriage.

Compensation must also be paid to the other engaged person for the
losses he or she may have suffered by having taken other steps affecting
his or her property or source of income in expectation of the marriage.
 GERMANY

Losses may be compensated only to such extent as the expenses, the

undertaking of the obligations and the other steps were reasonable in the
circumstances.
The duty to pay compensation does not arise if there is a grave
reason for withdrawal from the engagement. Moreover, if an engaged
person, by any fault that constitutes a grave reason for withdrawal, causes
the withdrawal by the other person, he or she will be liable to pay
compensation.
 ITALY

The law relating to breach of promise of marriage is largely

contained in Articles 79 to 81 of the Civil Code.

Article 79 establishes the general principle that a promise of

marriage does not bind the promisor to contract it or to perform
what may have been agreed upon in the event of non-fulfilment of
the promise
 ITALY

Article 80, which is concerned with gifts, provides that, in the

event of the marriage not taking place, either party to the engagement
may demand restitution of the gifts he or she has made to the other
party by reason of said promise. Fault does not enter into
consideration in this regard. A limitation period of one year is
specified in the Article.
 ITALY
Article 81 provides as follows:
A promise of marriage, when mutually made by public act or private writing by
persons who have attained majority, or by a minor authorised by those who must
give assent to the celebration of the marriage, or implied by the request for the
publication, binds the promisor who without justifiable reason refuses to
perform it, to compensate the other party for the damage resulting from the
expenditures made and the obligations contracted on the basis of that promise.
Compensatory damages are limited to expenditures and obligations that
correspond to the condition of the parties....
 SPAIN

The Spanish Codego Civil deals only briefly with breach of

promise of marriage.

Article 43 provides that an engagement does not constitute a

legally binding contract and that no order may be made by the Court
requiring a party to perform such an agreement.
 SPAIN
Article 44 provides that, where a promise to marry has been made in
writing, either by an adult or by a minor with the assistance of the
person whose consent to the marriage is required, or where the banns
have been published and he (or she) fails to get married without just
cause, he or she is obliged to compensate the other party for the costs
that that party has expended on account of the intended marriage.

A limitation period of one year is provided for in the Article.