Breach of Promise of Marriage
Chapter Twenty-Five
Syllabus topic 1.3, "The Pickwick Papers - Charles Dickens"
Pages 128 to 131 of 406
In one line
Breach of promise of marriage was a civil action for damages, brought by a person whose engagement had been broken, and it existed because an engagement was treated as a contract and because a jilted woman in the nineteenth century really had lost something the law could measure.
In the wording a student can write in an examination: an action for breach of promise of marriage lay at common law where one party to an agreement to marry refused to perform it, the remedy being damages assessed by a jury, and it was abolished in England and Wales by section 1 of the Law Reform (Miscellaneous Provisions) Act 1970.
What had to be proved
Four things, and Bardell against Pickwick can be tested against each.
One. A promise to marry. It did not have to be written or formal. It could be inferred from conduct and from the way the parties behaved towards each other.
Two. Acceptance, so that there was an agreement. Both sides had to be bound.
Three. Breach. A refusal to marry, or a marriage to somebody else, or a repudiation by conduct.
Four. Damage. Which the law largely presumed, and which the jury measured.
Applied to the novel. The only evidence of a promise is that three men walked into a room and found Mrs Bardell in Pickwick's arms, plus two notes about dinner. There is no writing, no witness to any words of promise, and no date. That the action succeeded on that material is Dickens's point, and it is the answer to a question asking whether the verdict was justified.
Why the action existed, stated fairly
It is easy to laugh at it, and the novel invites you to. An answer that only laughs is incomplete, because the action protected something real.
A woman's engagement was her career. In a society where a middle-class woman could not easily earn, marriage was the settlement of her whole economic future. A broken engagement removed it.
Her reputation was damaged. A long engagement, publicly known, followed by a public rejection, put her at a disadvantage in a marriage market that judged her by exactly that.
She might have acted on the promise. Refusing other offers, leaving employment, moving, spending on preparations.
The action was one of the very few a woman could bring in her own name. A married woman's separate legal personality was heavily restricted for most of the nineteenth century, so a claim available to an unmarried woman was unusual.
Why it fell into disrepute
The damages were assessed by juries, and juries were sentimental. Buzfuz knows this. Everything he does, the widow's weeds, the fainting, the child placed in front of the judge, is aimed at the assessment of damages rather than at proof of a promise.
Breach of Promise of Marriage
It was open to abuse. A case could be built on ambiguous conduct and pressed by attorneys with an interest in the costs, which is exactly what Dickens describes.
It became a way of buying off scandal. Defendants settled to avoid the publicity of a trial, which meant the threat was worth money whether or not the claim was good.
Society changed. As women's access to work, property and divorce widened through the twentieth century, the economic premise of the action weakened.
The abolition in England and Wales
Section 1 of the Law Reform (Miscellaneous Provisions) Act 1970 is headed "Engagements to marry not enforceable at law", and it provides:
(1) An agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights and no action shall lie in England and Wales for breach of such an agreement, whatever the law applicable to the agreement.
(2) This section shall have effect in relation to agreements entered into before it comes into force, except that it shall not affect any action commenced before it comes into force.
Read the words carefully, because they do two separate things. The agreement is deprived of contractual effect, and separately no action lies for breach of it. And the closing words, "whatever the law applicable to the agreement", shut out the argument that a promise governed by some other system of law could still be sued on in England.
Subsection (2) is the transitional provision. It reaches back to engagements already made, but it does not disturb any action already commenced.
The position in India
The action has not been abolished in India. There is no Indian statute corresponding to section 1 of the 1970 Act, and an agreement to marry is treated as a contract, so a suit for damages for its breach is maintainable.
Keep this short in an English answer and do not overstate it. What a student can safely say is this: England abolished the action by statute in 1970; India has passed no such statute, so the claim survives here as an ordinary contract claim, and questions about promises to marry are also litigated in India in quite different contexts that belong to later semesters. Anything more detailed is a subject for the law of contract paper and not for this one.
The distinctions an examiner may want
| Breach of promise of marriage | An ordinary breach of contract | |
|---|---|---|
| Subject matter | An agreement to marry | Any lawful agreement |
| Proof | Often inferred from conduct, without writing | Usually by the terms agreed |
| Damages | Assessed by a jury, and covering injured feelings and lost position, not only money lost | Compensation for loss actually flowing from the breach |
| Who typically sued | In practice, women | Either party |
| Position in England now | Abolished by statute in 1970 | Unaffected |
Breach of Promise of Marriage
How this feeds an essay on the trial
A good answer uses the law twice.
Early, to be fair to Mrs Bardell. The action she brought was a real one, available to her because the law recognised that a broken engagement cost a woman something. She is not a fraud; she is mistaken and then used.
Late, to make the criticism land. Because damages were at large and juries were moved by feeling, the action rewarded advocacy of exactly Buzfuz's kind. Dickens is not attacking a silly rule; he is showing a rule whose method of assessment invited the performance he describes.
What beginners get wrong
They call it a criminal charge. It is civil, and the remedy is damages.
They say Dickens got the law wrong. He did not. The procedure in chapter 34 is accurate down to the tales and the attorney's seat.
They say the action was abolished because it was ridiculous. It was abolished in England and Wales because its social basis had gone, and the statute says only that engagements are not enforceable at law.
They import the English abolition into India. Section 1 of the 1970 Act applies to England and Wales, and it says so on its face.
A worked answer
Question. "What had to be proved in an action for breach of promise of marriage, and was it proved here?"
The elements, stated first. A promise to marry, which need not be in writing and could be inferred from conduct; acceptance, so that there was an agreement; breach, by refusal, repudiation or marriage to another; and damage, which the law largely presumed and the jury measured.
Applying them to the case. On the first element the evidence was that Tupman, Winkle and Snodgrass walked into a room and found Mrs Bardell in Pickwick's arms, together with two notes in the defendant's hand about chops and tomato sauce and a warming-pan. There was no writing containing any promise, no witness to any words of promise, and no date. On the second element there was nothing at all except the same embrace. Breach was not seriously in issue. Damage was assumed, and the jury awarded seven hundred and fifty pounds on a claim laid at fifteen hundred.
The conclusion, which must take a position. On that material a promise could only be inferred, and the inference was supplied by Serjeant Buzfuz rather than by the evidence. Since damages in such actions were at large and juries were moved by feeling, the action rewarded exactly the advocacy Dickens describes, and the verdict is better explained by the performance than by the proof.
Breach of Promise of Marriage
Quick revision
Four elements: a promise, acceptance, breach, and damage.
Why it existed: marriage was a woman's economic settlement, reputation was affected, she may have acted on the promise, and it was one of the few actions she could bring herself.
Why it fell: sentimental juries, easy abuse, settlement to avoid scandal, and social change.
Abolished in England and Wales by section 1 of the Law Reform (Miscellaneous Provisions) Act 1970: an agreement to marry has no effect as a contract, and no action lies for its breach.
Not abolished in India, where such an agreement remains a contract.
In the novel: no writing, no witness to any promise, two notes about dinner, damages laid at fifteen hundred pounds and seven hundred and fifty awarded.
Test yourself
1. State the elements of the action. A promise to marry, accepted so that there is an agreement, a breach by refusal or repudiation, and damage, which the law largely presumed and the jury measured.
2. Give two reasons why the action existed. Because marriage was the economic settlement of a middle-class woman's life, so that a broken engagement removed her future provision; and because a publicly broken engagement damaged her reputation and position, which the law treated as a real loss.
3. What does section 1 of the Law Reform (Miscellaneous Provisions) Act 1970 provide? That an agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights, and that no action shall lie in England and Wales for breach of such an agreement, whatever the law applicable to the agreement.
4. Is the action available in India? There is no Indian statute abolishing it, and an agreement to marry is treated as a contract, so a suit for damages for its breach is maintainable. The English abolition applies to England and Wales only.
5. On the evidence given at the trial, was the verdict justified? On the material before the jury there was an embrace witnessed by three men and two notes capable of an innocent reading, and no evidence of any words of promise. The verdict is explicable by the advocacy and by the fact that damages in such actions were at large, which is precisely Dickens's argument.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.