2.

Discuss the principles in the case:

d. Fender v St John Mildmay,
Facts: In 1930, P, a young woman, met D whom she knew was a married man. In 1932,
sexual intercourse began to take place between them. On 16 January 1933, the D’s wife
obtained a decree nisi for the dissolution of her marriage with him on the grounds of the
defendant’s adultery with the plaintiff. On 21 February and in April 1933, D promised to
marry P when his wife’s decree should be made absolute. On 31 July 1933, the decree was
made absolute, but then D refused to marry P and instead married another woman. P
brought an action against D claiming damages for breach of promise of marriage.
Held: The House of Lords by a majority decision, gave judgement in favour of P.
Principle:
- The second exception to the GR which is both parties must be single at the time of promise
(Promise made during the period of decree nisi)
- This is a situation in which an individual makes a promise to marry a third party during the
period when decree nisi is pronounced dissolving or annulling a marriage; wherein, that
individual promises to marry the third party after the decree becomes absolute. The promise
to marry will be valid.

e. Mary Joseph Arokiasamy v Sundram

Facts: A Hindu man had promised to marry a Christian girl. The girl was informed that the
man’s wife had died. The man, however, breached his promise to marry the Christian girl.
Held: The High Court found that there was no religious impediment against a Hindu man
marrying a Christian girl. The promise to marry was therefore valid and enforceable.
Principle:
- Exception to the GR too (both parties must be single at the time of promise).
- which is f the religion does not prevent the parties to get married, then the contract will be
valid.

f. Wharton v Lewis
Facts: D was informed, before the engagement, that the P would inherit her father’s property
upon his death. However, D broke off the engagement upon receiving information regarding
the questionable life that P had been leading. The P’s father and brother assured him that
the information was false.
Held: The jury decided in favour of the P as the false representations or wilful suppression of
the truth was not what induced the defendant into making the promise to marry. Thus, P was
awarded damages.
Principle:
- D is not bound by his promise where he establishes a false representation, or
fraudulent concealment in material particulars of the pecuniary circumstances or
previous life of the P.
 - The defendant must show that there was total reliance by him and he was convinced
with the information that was misrepresented to him.

g. Dennis v Senayah
It illustrates this two categories of damages in the context of a breach of promise to marry.
The plaintiff, the daughter of a Marine Department clerk became engaged to be married to
the defendant, a Revenue Officer in the Customs Department at Johore Bahru on December
12, 1959. On May 28, 1960 it was agreed between the plaintiff and the defendant that the
marriage should take place on August 20, 1960. On August 10, 1960 the defendant broke off
the engagement and refused to marry the plaintiff. The plaintiff now sued the defendant for
damages for breach of promise to marry and special damages for expenses incurred
thereby. The plaintiff complains that as a result of the breach by the defendant of his promise
to marry her she has endured humiliation and mental anguish and has been put to expense
and has suffered damage. She therefore claims general damages for breach of promise of
the statement of claim. The learned judge found no aggravating circumstances such as an
allegation of seduction. There was naturally mental anguish and humiliation. On the plaintiff’s
future prospects for marriage, he found her to be young and her prospects not marred as
such. General damages amounting to RM1500 were awarded as the judge also considered
her father’s standing in the community, in which the plaintiff’s father, a clerk in the Marine
Department, Penang, aged 48, and he earns about $500 per mensem, who has 11 children,
of whom the plaintiff is one. The defendant is a Revenue Officer in the Customs Department
earning about $244 per month. Therefore, the court in assessing damages the injury to the
affections of the plaintiff, the prejudice to his or her future life and prospects of marriage, the
rank and condition of the parties and the defendant’s means are all matters to be taken into
consideration, awarded the sum of $1,500 as general damages and $620.10 as special
damages.

4. Once a breach of promise is proved, it is for the defendant to forward any valid
defence to forestall further action. Discuss the defences available for the defendant.
Once a breach of promise to marry has been established, the party who has been in
default will be liable to pay damages. However, there are several defences which can be
used by the defendant in order to escape liability. If the defendant is able to put forward any
of the defences, then the defendant will not be made liable to pay damages to the plaintiff.
Four defences available for the defendant:
i. Misrepresentation of fact by the plaintiff
-In order to succeed in using this defence, D has to prove that he or she has
entered into the contract to marry as a result of a material misrepresentation of
fact by P.
-D must show that there was total reliance by him and he was convinced with
the information that was misrepresented to him.
-eg: A person tells you that he is a CEO of a multi-million dollar company.
However, later it was found out that the person is actually an ordinary clerk in that
company.
Case: Wharton v Lewis
- D was informed, before the engagement, that the P would inherit her father’s
property upon his death. However, D broke off the engagement upon
 receiving information regarding the questionable life that P had been leading.
The P’s father and brother assured him that the information was false.
- Held: The jury decided in favour of the P as the false representations or wilful
suppression of the truth was not what induced the defendant into making the
promise to marry. Thus, P was awarded damages.

ii. A contract to marry is not a contract of uberrimae fdei

- Uberrimae fdei is the Latin word for utmost good faith.
- In a case of a contract to marry, the contract is not a contract of uberrimae
fdei. (Parties to the contract need not exercise complete disclosure)
- Therefore, if a man has had a girlfriend before making a promise to marry a
girl, that man need not inform the girl of his past girlfriend.
- Case: Beachey v Brown
D contended that had he known P had agreed to marry another man when
she entered into an engagement with him, he would not have agreed to marry
her. However, the court rejected his defence and held: Although there are
many things that a person may want to know about his future wife, the
discovery of such attributes should not entitle him to refuse to fulfil the
engagement.

iii. Plaintiff’s own moral, physical or mental infirmity

- D will have to prove that P suffers from moral, physical or mental infirmity that
has rendered the plaintiff to be unfit for the marriage.
- D will also have to prove that the infirmity was discovered either after the
engagement contract had been made or that the infirmity had only begun to
develop after the making of the contract.
- D must genuinely be sure.
Case: Jefferson v Paskell
- P contracted a chest disease soon after her engagement and was rendered
unfit for marriage. She underwent treatment but D refused to marry her, even
after she was given a clean bill of health within less than six months.
- Held: P was awarded damages as D had failed to prove that he honestly and
reasonably believed P to be unfit for marriage.

iv. Defendant’s own mental or physical infirmity

- Not a defence.
Case: Hall v Wright
- D contended that his own supervening ill-health, a serious occasional
bleeding from the lungs from which he was still suffering, would cause the
excitement of marriage to endanger his life. However, the court rejected his
infirmity as a defence.

5. In England, the Law Reform (Miscellaneous Provisions) Act 1970 has abolished
breach of the promise to marry as a cause of action in court. Does the same situation
apply in Malaysia?
Despite the fact that the English Law Reform (Miscellaneous Provision) Act 1970 had
abolished action for damages for breach of promise of marriage, the same cannot be said to
Malaysia by virtue of Civil Law Act 1956 and Contract Act 1950.
 It is to be known that Malaysia is not bound by the English legislation. This is
because of the cut-off dates in accordance with Section 3 of the Civil Law Act 1965 (West
Malaysia, 7 April 1956, Sabah, 1 December 1951 and Sarawak, 12 December 1949). Thus,
since the Law Reform (Miscellaneous Provisions) Act came into force only in 1970, it has
passed the cut-off dates as stated in Section 3(1) of the Civil Law Act. In other words, it is
not an obligation for the courts in Malaysia to abolish the breach of promise to marry as a
cause of action as what have been done in England.
With reference to the case of Doris Rodrigues v Bala Krishnan, here in this case,
the court had still recognised the breach of promise to marry as one of the causes of action
despite such breach had been abolished in England. Furthermore, as this case was reported
in 1982, it is a clear indication that the courts in Malaysia are not obliged to apply the Law
Reform (Miscellaneous Provisions) Act 1970 on the ground that the law has passed the cut-
off dates.
It is also reaffirmed that Malaysia has not abolished a breach of promise to marry as
a cause of action in court due to the fact that we still acknowledge the ‘exemplary damages”.
Such damages are awarded because they are to relieve the “distress, anguish, anxiety,
inconvenience, embarrassment and humiliation”.
In Wong Chun Wah v Kok Kam Chee (2008), the P had appointed D as his trustee
to buy a house in Malaysia and promised to marry her. He banked in a sum of money into
D’s account as deposit for buying the house. The house-buying transaction was under D’s
name. Subsequently P breached his promise to marry, which resulted in D’s action in taking
away the money. P’s claim is to get back the money and for the execution of trust deed.
Here the court had dismissed P’s claim.

6. David has been married to Cathy for 10 years. In 2010, a doctor confirmed that Cathy is
suffering from brain cancer. Thinking that his wife is dying soon, David promised to marry
Susan upon the death of his wife. Susan knew that David was a married man. In Nov 2015,
Cathy died. Susan then reminded David of his promise to marry her. David however, refused
to marry Susan. Susan now wishes to sue David for breach of promise to marry.
a) Advise Susan on the possibility of succeeding in her claim against David.
b) Would your answer be different if Susan has no knowledge that David was a married man
when she accepted his proposal