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• Definition: it is a contract/ agreement entered into between two parties (e.g. between a woman and a man) to marry on a specific or determinable date.

• No formalities regarding the engagement, so it can be concluded in writing or orally.

The conclusion of the engagement contract                                                                                                           

1.      Consensus i.e. agreement

§  There must be agreement both parties.

§  Certain factors which can violate the consensus element with the effect that the agreement is either void e.g. a material mistake or voidable e.g. misrepresentation, duress or undue influence.

(i)Material mistake/ Error

§  For true consensus to exist the intentions of the two parties must correspond regarding the nature of the contract as well as the identity of the parties to the contract.

§  If parties have not reached agreement on the material (important, crucial) aspects of the engagement, one cannot say that there is consensus and as such there is no contract

Mistake can occur in the following 2 ways;

§  Error in persona – takes place where either of the parties is mistaken regarding the identity of the other party

§  Error in negotio –occurs where either of the parties is mistaken regarding the nature of the juristic act i.e. contract itself.

Such material mistakes render the engagement contract void ab initio i.e. there is no engagement at all.

(ii) Material misrepresentation- express/ tacit

§  Occurs where either of the parties to the engagement contract makes a false/ untrue representation (creates a wrong impression) to the other party regarding particular issues,

§  Which if the other party (to whom the misrepresentation has been made) had been aware of the true state of affairs; they would not have concluded the engagement at all or concluded the engagement albeit on different terms.

What constitutes “material misrepresentation”?

§  Any misrepresentation whose nature is such that significantly reduces/ risks any chances of attaining a “happy and harmonious” marriage will be deemed as “material”.

A misrepresentation can either be positive or negative acts.

§  Positive acts- refer to actively making an untrue representation regarding the truth.

§  Negative acts- failure (omission) to correct a misrepresentation when the party responsible for the misrepresentation is aware of it or failure to disclose facts where one has a duty to speak out.

§  Misrepresentation renders the engagement contract voidable at the option of the innocent party. It is a ground which justifies cancellation of the engagement contract.

§  This is regardless of whether the misrepresentation was made innocently or intentionally.

2.      Capacity to act- on both parties

A minor must:

§  Obtain parental permission to get engaged

§  Ratification will suffice

§  Unless the Court orders otherwise or sole guardianship has been granted, consent from both parents is necessary.

§  Where only one parent is alive, the surviving parent’s consent is enough.

§  Where both parents are deceased, consent from the legal guardian is required.

§  An emancipated minor must also secure parental consent.

§  Consent from the Minister of Home Affairs is also required for boys below 18 and girls below 15

§  If parental consent is withdrawn, engagement is automatically terminated and none of the parties to the engagement have a claim for breach of promise.

§  Parents cannot conclude the contract on behalf of the minor without the latter’s consent.

§  Where a minor (without assistance) concludes the engagement contract with a major, the contract is binding and enforceable upon major i.e. the major is liable (civil obligation) while it only creates a natural obligation on the minor i.e. the minor is not bound.

3.      Lawfulness

§  Both parties to the engagement must not be married

4.      Possibility of performance

§  Parties to the engagement must actually be in a position to validly marry each other.

§  Therefore e.g. they may not be related within the prohibited degrees of relationship, none of the two parties may be below the age of puberty etc.

The legal nature and consequences of the engagement

§  The engagement is based on a reciprocal undertaking between the parties to marry each other.

§  Once a date has been agreed upon by the parties, there rests a reciprocal duty upon both parties to get married on that date, which can be changed by mutual agreement.

§  Where a date has been set, a party’s unjustified refusal to marry on this date (and the other party is not satisfied) amounts to a breach of contract.

§  It is also in breach of promise where a party continually refuses to set the date within a reasonable time.

§  The engagement can be concluded subject to some conditions.

§  Since the engagement is concluded in view of a marriage, it requires a high level of loyalty and faithfulness between the two parties.

§  As a result in the event that either of the parties is involved with a third party amounts to breach of promise, the innocent party is entitled to withdraw from the engagement and sue for damages.