Court allows breach of promise claim, rejecting Canon Law and treating anticipatory breach as actionable.

[*1031] 1971 July 9

(TRIANTAFYLLIDES, P., L. LOIZOU, HADJIANASTASSIOU, JJ.)

APPELLATE JURISDICTION

Androulla Theodorou,

Appellant-Plaintiff,

v.

Andreas Charalambous Sekkeris,

Respondent-Defendant.

(Civil Appeal No, 4748).

Contract - Promise to marry - Breach

- Anticipatory breach - Treated as a cause of action - Cannot he used by defendant as a defence to action of breach of promise.

Contract - Promise to marry - Breach

- Rights and obligations of parties arise entirely out of their own contract - Principles of the Canon Law inapplicable.

Contract of Marriage - Breach of promise of marriage - Law applicable.

Breach of promise of marriage - See under "Contract" "Contract of Marriage".

A. Triantafyllides with L. Papaphilippou, for the Appellant.

D. Liveras, for the Respondent.

JUDGMENT

TRIANTAFYLLIDES, P.: Mr. Justice Hadjianastassiou will deliver the judgment of the Court.

HADJIANASTASSIOU, J.: The appellant in this case appeals to this Court from the judgment of the District Court of Nicosia dated June. 24 9 1968, dismissing the claim of the plaintiff against, the defendant in Action 4057/66 for breach of promise of marriage. [*1032]

The plaintiff, a young woman of twenty-one years of age, brings this action for breach of promise of marriage against the defendant, a man of twenty-eight, a mason by profession. In paragraph 3 of her statement of claim, she alleges an engagement on or about the 9th March, 1966, which was published in two newspapers. On April 17, 1966, the defendant and the plaintiff solemnized before a priest their promises to marry each other. The ceremony of marriage was to be performed in accordance with the rites of the Greek Orthodox Church and the time fixed for the marriage was October, 1968. The terms of the agreement, including the dowry, were embodied in a contract, signed by the parties and their parents respectively, as well as by two witnesses.

There is no dispute about the promise to marry and the plaintiff in paragraph 6 of her statement of claim alleges that because of the promise of the defendant to marry her she allowed him to deflower her on or about March 13, 1966, and had regular sexual intercourse after that date. In paragraph 8 she alleges that in breach of this promise the defendant refused to marry her; and in paragraph 10 she alleges that she is and always has been ready and willing to marry the defendant.

The defendant, in paragraph 4 of his statement of defence, denied the allegation of the plaintiff that he deflowered her and alleged that the plaintiff confessed to him that she had been deflowered by a co-villager of hers called Michalis, with whom she had relations before her [*1033] engagement. Moreover, in paragraph 5 he alleged that after such confession the plaintiff and her parents agreed, to his suggestion that the matrimonial home should be at Livera instead of at Lymbia. In paragraph 7 it was alleged that by reason of the fact that the plaintiff did not Went the defendant to establish a matrimonial home in Livera, she rescinded the contract to marry each other.

The record of the trial Court of November 23, 1967, reads:-

"1. At this stage both sides agree as follows: -

(a) That a promise to marry was exchanged between the parties on the 9th March, 1966, and that the marriage was to be celebrated in accordance with the Greek Orthodox church rites.

(b) One of the terms of the aforesaid agreement to marry was that the matrimonial home was to be at Lymbia.

(c) That at a later stage the defendant decided that their matrimonial home would be at Livera instead of Lymbia with Which

decision the plaintiff did not agree.

(d) That following the plaintiff’s refusal as aforesaid, the defendant refused and/or failed to proceed with the marriage.

2. The parties allege the following: - [*1034]

(a) The plaintiff contends that: -

(i) The defendant’s decision to establish the matrimonial home at Livera was unreasonable and consequently her refusal was justified,

(ii) that even if her refusal was unjustified, she was under no duty to agree at the time with the decision of the defendant as in paragraph 1(c) above.

(b) The defendant contends that: -

(i) His decision as in paragraph 1(c) aforesaid was reasonable and consequently the plaintiff’s refusal was unjustified,

(ii) that the plaintiff’s refusal amounted to a breach on her part, thus releasing him 1 from the duty to proceed with the marriage.

Parties further agree that in the event of the Court deciding in favour of the plaintiff, the amount of damages to which she will be entitled is £505.

Defendant withdraws his counterclaim".

On January 9, 1968, the plaintiff stated before the trial Court that when they exchanged promises with the defendant to marry, it was agreed that she should provide a house for them to live after marriage at Lymbia. The house was [*1035] to be built at the expense of her father and brother on a site next to the house of her father. On March 13, 1966, four days after they exchanged promises to marry each other, the defendant deflowered her when she happened to be at the house of his sister at Karavas. Following that event, they used to have sexual intercourse regularly. About two or three months later, the defendant asked her father, in her presence, to have their house built at Livera instead of at Lymbia. He asked him for £1,500 for the cost of the house. Her father did not agree. As a result of this, the defendant stopped going to her house. She denied that she told the defendant that she was deflowered by a neighbour of hers called Michalis, and alleged that she did not have a neighbour by that name. In cross-examination, she agreed that she told the defendant that she would not ever go to live at Livera.

The defendant, on the other hand, stated that he conceived the idea of having a house built at Livera sometime in the middle of June, because he wanted to live at Livera in order to be away from Lymbia because of the plaintiff’s confession that she had sexual intercourse with Michalis and because of the fear that this relationship might continue later on. He alleged that he informed the plaintiff of his fears and that she agreed to this suggestion; as a result, he contacted the father of the plaintiff and informed him of his decision, and although the father agreed to help him with the building of a house at Livera, nevertheless, he did not keep his promise. He [*1036] further explained that because of the refusal of the plaintiff, he stopped visiting her. However, he agreed that he had sexual relations with the plaintiff, but alleged that she was not a virgin.

It is not in dispute that the

decision of the defendant to establish the matrimonial hone at Livera was made after the contract to marry. See paragraph (c) of the agreed facts before the trial Court quoted in this judgment.

Regarding the law which governs the present case, it has to be remembered that the action for breach of promise of marriage is still treated as an action of breach of contract, although it differs from other forms of actions ex contractu in permitting damages to be given as for a wrong. A contract of marriage, of course, like any other contract, may be shown to be void on the ground of fraudulent misrepresentation or of public policy. This contract of marriage, likewise has peculiar incidents, by reason of which the performance of it may be excused; If, subsequent to the contract the woman has been found guilty of unchastity, the man, at his choice, is excused from the performance of his promise, which was given under the implied condition that the woman should continue chaste.

With regard to the question of unchastity of the plaintiff before the date of promise of marriage, and whether she had confessed to the defendant that she had sexual relations with another man, the trial Court said [*1037] that it had no reason to doubt the plaintiff's evidence, and has accepted her version to the contrary as being correct. As regards, however, the question where the parties should live after their marriage, the Court, had this to says:-

"That the defendant had suspicions that something of that kind had happened, we do not doubt and this is shown from the evidence of the plaintiff herself who admitted that the defendant had expressed similar doubts to her. But whether the defendant’s suspicions were well founded or not, is another matter, It is obvious, however, that because of his suspicions he decided that the couple should live at Livera after their marriage and in order to make his demand appear more reasonable and to by-pass the agreement as to the intended matrimonial home, he invented the story of the plaintiff’s confession."

The appellant's case before this Court was presented by counsel for the appellant under two main heads: Firstly, it was said that the finding of the Court that there was an anticipatory breach on the part of the plaintiff was erroneous in law. Secondly, it was contended that the Court erred in applying the principles of the Canon Law and not the Contract Law which governs the contract of breach of promise.

Although the Court in dealing with the principles of [*1038] Canon Law took the view that it had no bearing in this case, nevertheless, it appears that in approaching the question of breach of the contract of marriage it was influenced by the relevant expert evidence before it. viz., that the wife is under the obligation to follow her husband to wherever he chooses to establish the matrimonial home, subject only to whether the husband’s decision is utterly unreasonable.

The trial Court had this to say:-

" The defendant was faced, before the marriage, with a clear and unambiguous refusal on the part of his future wife to comply with one of her fundamental obligations after marriage. Was he expected to go on with the marriage thus fulfilling his part of the agreement and then take divorce proceedings immediately after? Although there may be some arguments for the opposite view, we are inclined to the view that he was justified in following the course which he did. One analogy may perhaps be found in the law of contracts relating to anticipatory breach."

We are in agreement with counsel for the appellant that the trial Court misdirected itself on the question of anticipatory breach on the part of the plaintiff. The rights and obligations of the parties arise here entirely out of their own contract, and we cannot see how the principles of Canon Law can be invoked to justify the non- [*1039] fulfilment of the promise of the defendant. As we have said earlier, the establishment of the matrimonial home at Livera was decided only by the defendant and it was not to be part of the promise to marry. The contract of marriage, apart from the fact that it carries with it consequences of the utmost importance to the parties, appears to afford a striking illustration of the expediency of holding that an action may be maintained on the repudiation of the contract to be performed in future. The contract, having been thus broken by the promisor defendant, and treated as broken by the promisee plaintiff, performance at the appointed time becomes excluded; and the eventual non-performance may therefore, by anticipation, be treated as a cause of action, and damages be assessed and recovered in respect of it, though the time for performance may yet be remote.

Having found that anticipatory breach is treated as a cause of action, it therefore could not be used by the defendant as a defence to the action of breach of promise; and we fail to see how the plaintiff’s action could be dismissed by the trial Court once the defendant never made part of his contract the possibility of establishing his matrimonial home at Livera.

In the light of what we have said, and since the defendant has created a duty upon himself by his contract, he is bound to make it good by paying damages to the plaintiff for this breach. Of course, if the amount of [*1040] damages was not agreed by the parties, the conduct of the plaintiff could be taken into consideration by the trial Court as evidence relevant to the amount of damages.

We would, therefore, reverse the judgment of the trial Court and allow the appeal; there shall be judgment for appellant for the sum of £505.000 mis. agreed damages with costs in the Court below and before this Court.

Appeal allowed.