Nature of Contract to Marry.
The refusal of either party to a contract of marriage to fulfil it. In order that there may be a breach of promise, there must be a contract cognizable by the law. Unlike the law in many modern systems of jurisprudence, mere mutual promises of a man and a woman to marry do not constitute such a contract in Jewish law, which requires a written agreement embodying the terms of the contract and specifying the amount of damages ("ḳenas") payable by either party to the other upon its breach. Such contracts are commonly called "shiddukin" or "tenaim rishonim" (first stipulations), and contain explicitly a statement of the amount of damages payable by either party to the other in case of breach of the contract.
For the purpose of insuring greater security, promissory notes are deposited by both parties with a third person. These notes are drawn for a specific sum, to become due and payable upon the non-fulfilment of the contract, and are coupled with the condition that upon the consummation of the marriage the notes shall ipso facto become null and void. In case the promise of marriage is made secretly it is necessary that all these provisions be fully complied with in order to entitle the innocent party to a right of action against the party guilty of the breach; but if the contract is publicly entered into, damages may be claimed for the breach even though all the formalities have not been complied with, because an additional consideration enters into the contract by reason of its publicity. In such cases breach of the contract would result in shame and disgrace to the innocent party; and this is sufficient consideration for the recovery of the damages.Contract May Be Mutually Rescinded.
If, after the execution of the contract, the parties mutually agree to rescind it, there is no breach of promise, and the parties are released from all obligations to each other: all gifts must be returned unless there has been a specific agreement to the contrary; and the parties stand in the same relationto each other as though no contract had been entered into. In case it becomes impossible for one of the parties to fulfil the contract, the other is released. For instance, if one of the parties has agreed to give a certain amount of dowry, and is unable to fulfil this condition because of having become impoverished, the other party, if not choosing to do so, is not bound to fulfil the contract. Where one of the parties is obliged to remove from the place where they had intended to take up their residence, the other is not obliged to follow, but may declare the contract annulled.
If the near relations of either of the parties, by reason of misconduct or improper life, bring disgrace upon the family, or if one of the contracting parties is guilty of such fault, the other party is released; and if either party becomes insane, or apostatizes, a like result follows.
The obligations assumed by the respective parties to the contract are binding upon their heirs.
If the father of the prospective bride has entered into the contract with the prospective groom, and the girl then refuses to be married, her father is released from his obligation by reason of the impossibility of fulfilling the contract, provided, of course, there is no fraud or collusion between himself and his daughter.
It is generally decided by the rabbinical authorities that specific performance of the contract to marry can not be enforced after the party guilty of the breach of promise has paid the pecuniary damages specified in the contract.When a Pledge Is Given.
In case a pledge is given by either party to the other at the time when the promise to marry is made, as security for the payment of the damages that may be recovered for the breach of contract, it is necessary that the delivery of the pledge be accompanied by an express agreement specifying that, in case the contract is broken, the pledgee shall be entitled to a specific sum out of the proceeds of the sale of the pledge. If the party guilty of the breach of promise can not pay the penalty, recourse may be had to the surety, and if the latter is obliged to pay the damages, he may have recourse against his principal at any time in the future.
As stated at the beginning of this article, all these provisions are applicable only in case the promise of marriage has been reduced to writing, and the proper formalities have been complied with. If there have been merely oral promises with the understanding that the agreement in writing shall be executed, the parties are at liberty to retract at any time before the written agreement has been signed by the witnesses; and, in case of such retraction, no breach of promise in the technical sense occurs; the parties are not bound in any way, and are free from all the obligations and responsibilities of the contract.
- Shulḥan'Aruk, Eben ha-'Ezer, §§ 50, 51;
- Mendelssohn, Ritual-Gesetze der Juden, iv. 3, 4;
- Duschak, Das Mosaisch-Talmudisches Eherecht, i. 3.