Revere: Revolution in Silver II

Earlier, we looked at some of the general legal and historical issues with Revere: Revolution in Silver. Today, we’re looking at one particular legal problem: breach of the promise to marry. In the story, a young woman finds herself arranged to be married to a young man. The match was set up by their respective families, but the man is far more interested in the marriage than the woman. After a traumatic incident, the young woman refuses to go through with it. The young man is understandably upset, but his parents are aghast. They had been counting on the woman’s family business connections, which would have stayed with her after the marriage. The man remarks that, as she’s now broken her promise to marry, he can recover her business as damages.

Is that really how it works? Previously, we’ve looked at void and voidable marriages, and interspecies marriage, but now we’re going to look specifically at the tort of breach of promise.

I. Breach of Promise to Marry

The tort of breach of promise is, believe it or not, a real thing. It was at common law, and it still is today, though the scope and severity of the tort has been curtailed significantly. It’s disfavored in many states, and many legislatures and/or courts have limited the scope to actual damages, usually the cost of the wedding. And there’s a ton of ink spilled and widely varying results over the return of engagement rings should an engagement be broken off.

But at common law, not only was the tort a legal reality, but damages could be quite expansive. Actual damages, to be sure, but also reputational and even consequential damages. Patriarchal as it seems today, the tort was designed to protect young women. The classic example is of a young woman engaged to be married to a rich man, thus ensuring her financial security. If, after a period of engagement, the man breaks it off, not only has the woman lost that route to security, but the odds of her becoming engaged to someone else would have been severely lowered. Her reputation would be more or less ruined. This all seems fantastically sexist today, but that was the social reality of the time.

II. Breach of Promise in the Story

But the fact that the breach of promise tort existed does not mean that things would work out the way they are depicted in the story. Two things come to mind.

First, men weren’t generally allowed to bring breach of promise claims. Women were essentially given the right to change their minds at will. Again, as the tort was designed to protect them, the assumption was that if she was the one who called it off, she must have good and compelling reasons to do so, and she must be figuring in any cost of not going through with the marriage into her calculations. So if she wants out, she can get out. So because it was the woman who was breaking things off, no tort would lie.

Second, even if the tort weren’t dismissed out of hand, the man’s damages would have been pretty paltry. Part of this has to do with the way the tort was construed, i.e., because it wasn’t really his interests being protected, he probably wouldn’t have been permitted to recover much in the way of consequential or reputational damages. But that aside, this was never really a “You jilted me, so now I get all your stuff!” kind of tort.

But most of all, it’s not clear that there actually is a valid contract anymore. This is a little complicated, so hang on. First, an engagement contract, like any other, requires offer and acceptance, i.e., a meeting of the minds between the contracting parties. In this case, it’s made clear that said parties are actually the parents of the couple, specifically the fathers. This is archaic by today’s standards, but such things were fairly common in the eighteenth century. But the woman’s father is now dead (the aforementioned “traumatic incident”), and her mother had apparently died some time before. In cases of personal contracts, the death of a contracting party usually voids the contract. So because the woman never really gave her consent—as an “infant” she lacked capacity to do so and her father could speak for her—the only person with whom there could have been a meeting of the minds was the father. He’s now no longer there to insist upon the match, and she obviously wants no truck with it. So there’s a good argument to be made that the deal is now officially off.

8 Responses to Revere: Revolution in Silver II

  1. While this isn’t in the story, I’m now curious about how a pre-nup would work if the marriage gets broken off before it happens. Just nullified?

  2. Melanie Koleini

    I have a question about how contracts are voided by the “death of a contracting party.”
    What if, instead of a marriage the fathers had contracted to merge their companies? If one father had died before the deal was finalized could his heir pull out of the merger deal without penalty?

    • That’s… a little more complicated. Depending on how the companies were set up, the fathers might not actually be the contracting parties. The companies would. Even in the eighteenth century, corporate entities existed. If the proposal was a merger of corporations, then the fathers would simply be authorized agents of the corporation. The corporations themselves would be the principals. So if one of the fathers died, it’d be no different than any other corporate employee dying.

      But if the businesses are unincorporated sole proprietorships, then yes, the death of one of the proprietors before the deal went through would probably nullify the contract.

      • James Pollock

        It definitely would have. A merger of two sole proprietorships is a general partnership. General partnerships are dissolved when a partner dies. If one of the intended partners dies before the partnership is joined, it can never come into being.

    • I’m going to disagree with my co-author here. The death of a contracting party is only an issue if the contract is personal to the party or, relatedly, if their death makes performance impossible. The merger of two sole proprietorships would not necessarily qualify, particularly if the deceased party had an heir that inherited the business.

      • Couldn’t that reasoning apply to marriages too? The contract isn’t personal to the parents and the death of the parents doesn’t make performance impossible.

    • I would like to note that here we are talking about a very peculiar type of contract. We should use the verb “marry” in the archaic sense: “to marry one’s daughter to someone”. The old Germanic law, and as far as I understand, the ancient English common law, required that the woman has the permission of her father or her guardian to marry. Now, the father making a contract about the marriage is not really a contract on the marriage, but a contract on the use of his right to give permission.

      In this case, the father has contractually obligated himself to allow his daughter to marry only a certain man. This was his legal right. (And the daughter had, in church law of both Anglican and Catholic churches to refuse to marry.) Now, when the father dies, the right to consent is transferred to another person. The father is unable to bind his successor to this contract.

      The case is similarto other guardianship issues. You cannot determine the actions that the future guardian of your child will take in case of your death, although you were, at the present, the sole guardian of your child.

  3. Hence “changing her mind” being a “woman’s prerogative”.

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