Rivera Damiani v. Fagot
Rivera Damiani v. Fagot
Opinion of the Court
delivered the opinion of the Court.
This is an action for damages brought by Hortensia Rivera Damiani against Emilio Fagot, Jr. for an alleged breach of promise of marriage. The averments of the complaint may be summed up as follows: On December 23, 1947, and as a result of the love relations between them, the defendant and plaintiff agreed to marry. On that same day they announced their engagement at plaintiff’s residence in Guaya-nilla and obtained the consent of plaintiff's parents, as is usual and customary. Plaintiff at the time was of age, single, and a student in the University of Puerto Rico; the defendant was also of age, a widower, and proprietor, so that they were both competent to contract marriage, there being no legal impediment to marry each other. The love relations between plaintiff and defendant continued until the time of the wedding and at defendant’s behest she gave up her studies in the University so she could be “near him with greater
In view of defendant’s action, plaintiff alleged that she suffered damages estimated at $15,000, on the following accounts: (1) moral suffering, mental anguish, impairment of health, pain, mortification, mental anxiety, humiliation before her acquaintances, friends, and family; (2) damage to her reputation before society; (3) failure in her studies and prospects in life, and (4) failure in her economic expectancy based on the prospective marriage to the defendant, who was a person of solvent means.
The defendant moved for dismissal of the complaint alleging that it did not state facts sufficient to constitute a cause of action against him. The motion was dismissed after a hearing before one of the judges of the lower court. The defendant then answered denying specifically the essential facts of the complaint, alleging on the contrary other facts, and reproducing, by way of special defense,
(1) The action for damages for breach of promise of marriage is not authorized by our Civil Code, since by the nonadoption of §§ 43 and 44 of the Spanish Civil Code the legislative intent was to abolish such action completely.
(2) That the action for damages for breach of promise of marriage does not lie either under the general contract laws or under § 1054 of our Civil Code.
(3) Even assuming that the promise of marriage were a contract, a claim for damages will be limited to the expenses incurred by her for the marriage ceremony, since damages for the suffering caused by mental anguish as a result of such breach are not recoverable.
Appellant sums up in her brief the grounds of her contentions as follows:
“The action brought by plaintiff is predicated on § 1054 of the Civil Code, which is an action for damages for nonperformance of an obligation violated by the appellee, regardless of how he did it. The obligation consists of his promise to marry plaintiff. Such a promise creates an obligation which arises from the contract made by both, which affirmation falls squarely within the scope of § 1054 supra. It is not an action predicated on § 1802, since it is not an act or omission resulting FROM FAULT OR NEGLIGENCE, WHICH CREATES AN OBLIGATION WHICH DID NOT EXIST THERETOFORE. Section 1802 of the Civil Code, which is equivalent to § 1902 of the Spanish Civil Code, is distinguishable from § 1054 in that under the latter an action for damages may be brought against those who in any manner fail to perform an existing obligation, as a condition precedent, while under § 1802 such action may be brought as a result of fault or negligence which, without the existence of A previous obligation and without any contractual relation, produces an injury or prejudice originating from an unlawful act.” (See XII Manresa, Comentarios al Art. 1902, p. 633 et seq.)
The appellee maintains, on his part, that the action for breach of promise of marriage is nonexistent, and that it is not recognized at all by our law, since the prevailing legislation contains no specific provision authorizing such an action, in view of the fact that §§ 43 and 44 of the Spanish Civil Code were not incorporated into our Civil Code; that
The Spanish Civil Code, which went into effect in Puerto Rico on January 1, 1890, or 20 days after it was published in the official Gazette on December 12, 1889 pursuant to Royal Decree of July 30 of that year, Torres et al. v. Rubianes et al., 20 P.R.R. 816, provided in its §§ 43 and 44 the following:
“Art. 43. A mutual promise of marriage shall not give rise to an obligation to enter into the contract of marriage, and no court shall entertain any complaint by which the enforcement of such promise is sought.
“Art. 44. If the promise has been made in a public or private instrument by an adult, or by a minor in the presence of the person whose consent is necessary for the celebration of the marriage, or when the banns have been published, the one who without just cause refuses to marry shall be obliged to reimburse the other for the expenses which he or she may have incurred by reason of the promised marriage.
“The action for reimbursement of expenses to which the foregoing article refers must be brought within one year, computed from the day of the refusal to celebrate the marriage.”
The foregoing provisions were omitted from our positive law when the Revised Civil Code went into effect on July 1, 1902.
Does the absence of those provisions mean, as maintained by appellant, that the promise of marriage should be governed in general by the same rules of our Civil Code as ordinary contracts, and that, therefore, its nonperformance produces the juridical consequences provided by § 1054
I
Betrothal — mutual promise to marry in the future —the origin of which, as an antenuptial requirement, is traceable to Greek law,
That is how the new declaration on betrothal contained in §§ 43 and 44 of the Civil Code came into the Spanish law. Some writers see in that form the principal characteristic of the precontract, although by the effect of those sections — which bar the action for specific performance —they refuse to admit that it has any relation with the preliminary contract.
Ill
The present condition of our positive law is not propitious for treating the promise of marriage as if it were a legal contract.
The situation of the Puerto Rican law is comparable to that of the French law,
We follow, as more rational and conformable to our law,
The basic requisites for determining the defendant s liability, pursuant to the general rules of civil liability, are, according to the applicable doctrine:
V
We believe — in the light of the evidence introduced in the lower court — that the three basic elements above pointed out are present in the case at bar. The evidence warrants
The conclusion reached by us as to the propriety and nature of the cause of action in the present case warrants the reversal of the judgment dismissing the complaint. We will not, however, remand the case to the trial court for further proceedings, since the findings of the lower court and the entire oral and documentary evidence before us place us in a position to make our own determination of damages.
The sum of $1,500 is awarded for the moral suffering and mental anguish, mortification, and humiliation before society. There is no evidence to warrant the allowance of
For the reasons stated, the judgment will be reversed and another rendered instead sustaining the complaint and ordering the defendant to pay to plaintiff the sum of $1,500 for damages, the costs, and $800 for attorney’s fees.
That special defense was argued prior to the trial before another judge of the lower court, who also dismissed the latter “without prejudice to whatever view the presiding judge may take after reading the case of Claparols v. De Castro, decided by the Court of First Instance for the District of Manila, Philippine Is., reported in 43 Am. L. Rev. 759, which we have been unable to secure despite our great efforts.” As will be seen from the legal grounds on which the dismissal was based, after the trial the judge rectified his previous view.
The court made, among others, the following findings of fact:
“That plaintiff and defendant maintained love relations for some time, and on or about December 23, 1947, the defendant and plaintiff agreed to marry and they so announced it to plaintiff’s parents. Both plaintiff and her parents accepted defendant’s promise to marry.
“That the defendant courted plaintiff some time in November 1947, while she was pursuing studies in the University of Puerto Rico, and from that date until the engagement he paid occasional visits to her in Santurce, Puerto Rico.
“That three months more or less after the engagement, the defendant wrote to plaintiff’s father notifying him that the engagement was broken because of incompatibility of character.
“That during the courtship the defendant gave plaintiff the following presents:
Wedding ring. $325
A watch. 100
Clothing and material for dresses, over. 100
Bracelets and earrings. 25
Shoes and perfume. $25 to. 50
“That after breaking the engagement to marry plaintiff, the defendant married his present wife.
“That after plaintiff discontinued her studies in the University of Puerto Rico, she continued the same in Percy School of Ponce.
“That as a result of defendant’s breach of promise to marry, plaintiff has suffered moral anguish, mortification, and mental anxiety.
“That plaintiff pursued University studies during one semester.”
Section 1054: “Those who in fulfilling their obligations are guilty of fraud, negligence, or delay, and those who in any manner whatsoever act in contravention of the stipulations of the same, shall be subject to indemnify for the losses and damages caused thereby.”
E. Menéndez, El Matrimonio, p. 57: “The Greeks were the first to establish the betrothal as an antenuptial requirement, together with what is known, today as ‘arras’ (betrothal gifts). By the arrae sponsalitiae, one who promised marriage compelled its celebration by delivering an amount to the other party, which kept it as its own in the event the marriage was called off, as a civil penalty for a breach of promise and in detriment to the offending party.”
2 Von Mayr, Historia del Derecho Romano (translation by W. Roces), p. 10; 2 Puig Peña, Derecho Civil, Vol. 1, p. 68, footnote 3; 2 Scaevola, Código Civil, p. 323; Radin on Roman Law, p. 114 et seq; 1 Manresa, Comentarios al Código Civil Español, p. 331: “Among the Romans, although the betrothal did not create an obligation enforceable at law, the betrothed who gave arrie forfeited the same by his refusal to contract marriage, for the benefit of the other party who insisted on living up to his promises (Laws 3, 5, and 6, Tit. 1, Book 5 of the Code).”
Marceliano Isábal, Esponsales, in 14 Enciclopedia Jurídica Española, p. 918 et seq.; Manuel Jiménez Fernández, Esponsales, in Diccionario de Derecho Privado, Vol. I, pp. 18, 21, et seq.
In the Fuero Juzgo: Laws 2, 3, and 4, Tit. I, Book III; in the Fuero Real: Law 10, Tit. I, Book III; and in the Partidas: Laws 1, Tit. I, Partida 4. See Manresa, op. cit., p. 331; Scaevola, op. cit., p. 323, 2 Clemente de Diego, Instituciones de Derecho Civil, p. 355; 1 Benito Gutiérrez, Código o Estudios Fundamentales sobre el Derecho Civil Español (2d ed. 1868), p. 231 et seq.
The juridical effect of this obligation, says Sánchez Román, “is purely theoretical, since neither the civil nor the canonical legislation, nor the civil or the ecclesiastical courts, have considered that they ought to require strict performance of this obligation to marry against the will of either of the contracting parties.” 4 Sánchez Román, Derecho Civil, pp. 482, 483.
See, also, the commentary by Francisco de Cárdenas in his Introduction to Vol. I of Manresa, Comentarios al Código Civil Español, p. 25.
At that time betrothal was regarded as a religious rather than a civil matter. The undesirability of forced marriages brought about, as a cure to its evils, the Pragmatic of March 23, 1776 (Law 9, Tit. II, Book X, Novísima Recopilación), whereby the father’s or mother’s consent was necessary for the betrothal of their children, and later, the Pragmatic of April 1, 1803, whereby a betrothal was not valid unless executed in a public deed, and no complaints were admitted by ecclesiastical courts to enforce the betrothal contracted without such formality.
The civil marriage law of 1870 declared that the promise of future marriage would not create a civil obligation. This law was in force, for that matter, only up to February 9, 1875, and after its repeal the betrothal, already in disfavor, gathered new life until the enactment of the Civil Code. Marceliano Isábal, collaboration supra, p. 927; Puig Peña op. and tit. cit., p. 72; Scaevola, op. cit., p. 323; 3 Castán, Derecho Civil, Común y Foral (6th ed.), p. 465 et seq.
Sánchez Román, op. cit. p. 484.
The Supreme Court of Spain recognized the action “for damages caused by one of the contracting parties by the breach of a solemn marriage contract,” considering “that the questions which arise concerning the performance of a contract made pursuant to law and to good usage must be decided in accordance with the agreement, because it is the principal law for the parties.” (Italics ours.) Judgments of January 13, 1879, 41 Jurisprudencia Civil 23, and January 21, 1881, 45 Jurisprudencia Civil 171.
Clemente de Diego, op. and tit. cit., p. 355: “The betrothal or engagement, handed down by tradition in our legal history (Fuero Juzgo, Real, Partidas, Pragmatics of March 23, 1776 and April 1, 1803), was the object of much scandal and therefore lost favor in the public opinion.”
See, also, 2 Scaevola, op. cit., p. 324.
Benito Gutiérrez, Códigos o Estudios Fundamentales sobre el Derecho Civil Español, 2d ed. (1868), Vol. I, p. 222. García Goyena, in Concordancias, Motivos y Comentarios del Código Civil Español (1852 ed.), Vol. I, p. 56, states as follows: “In the hands of a capable seducer, it is a weapon for combating the virtue of a passionate girl or one of inferior qualities; in the hands of a crafty or unscrupulous woman, it will be a snare to entangle a man madly in love: more than once the parents and tutors employed them to insure their combinations of interest, ambition, or vanity, engaging their minor children prematurely.”
See citation made by Clemente de Diego, op. cit., p. 355, of the view expressed in 1852 by Francisco de Cárdenas on the topic of betrothal, to the effect that “it was necessary to rid our law of a bad institution, somewhat in disfavor and disuse, but of serious inconvenience for the public interest and the welfare of the families.”
José Alguer, Para la Crítica del Concepto del Precontrato, in 22 Revista de Derecho Privado, pp. 321, 375.
4 Sánchez Román, op. cit. p. 482; 3 Castán, op. cit. (6th ed.), p. 337; Puig Peña, op. and tit. cit., pp. 69-70.
3 Castán, op. cit. (6th ed.), p. 337; 4 Valverde, Tratado de Derecho Civil Español, p. 75; Luis Muñoz, Comentarios a los Códigos Civiles de España e Hispanoamérica (1953), p. 106; Clemente de Diego, op. and tit. cit., p. 355: “By its nature it is an agreement and, perhaps, even a contract accessory and preparatory to marriage, but which does not necessarily lead to it; it is an advanced representation of marriage, without the intensity or extent of effect of the latter.”
Puig Peña parts from the theory that engagement is per se a contract. Op. cit., pp. 69-70.
Juan Ríos Sarmiento, in his contribution “La Familia,” in Enciclopedia Práctica de Derecho, Fenech (1952), p. 13, describes the promise of marriage as follows: “The Civil Code does not call it a contract but a promise; but, in fact, it is a contract, whether unilateral or bilateral.”
In Italian law, see Rotondi, Derecho Privado, p. 548; R. Bruggi, Instituciones de Derecho Civil, p. 411 et seq.
Comas, La Revisión del Código Civil Español, Vol. II, Special Part, pp. 134-135.
León Bonel y Sánchez, in Código Civil Español, Vol. I, p. 118, states as follows in relation to betrothal: “This promise, which at some time had force and when breached was punishable by the forfeiture of amounts, dowries for the wife, and in other ways which it would be tedious to enumerate here, has no longer any legal force, and all that may be said about it would be idle.”
And Falcon in Código Civil, Vol. I, p. 83, says in his commentaries on § 44: “It is a new precept in our law, but not new in the law of
1 Martínez Ruiz, Código Civil, p. 260.
Ortega Pardo, La, Ruptura de Esponsales en el Derecho Español Vigente, in 177 Revista General de Legislación y Jtvrisprudencia, pp. 611, 614 et seq.
In Lara v. Ortega, decided on July 6, 1905, by the United States District Court for Puerto Rico, a jury awarded damages for the breach in 1904 of a promise of marriage made in 1900, on instructions that the laws of Puerto Rico, like those of the United States, regarded a marriage contract as a civil contract; that an agreement to marry was considered, at law, as a contract, and that its nonperformance without justification gave rise to an action for damages, which was not limited to the mere recovery of expenses under the terms of § 44 of the Spanish Civil Code, even if it was in our legislation since July 1, 1902.
(The appeal from this judgment was dismissed for lack of jurisdiction by the United States Supreme Court in Ortega v. Lara, 202 U. S. 340, 50 L. Ed. 1055).
We are not bound, however, by the definition and scope which in the light of the rules of Anglo-American law, have been placed on our law by the federal court in that case.
Muñoz Morales, in 1 Anotaciones al Código Civil de Puerto Rico, pp. 25-26, in commenting on the principal changes in the 1902 Revised Civil Code, points out: “Title IV of this Revised Code deals with marriage, and Ch. I contains a single section which defines it as a civil institution arising from a contract. Consequently, all provisions dealing with canonical marriage and provisions common to both forms under the Spanish Code are eliminated.” Among those common provisions and both forms of marriage were §§ 43 and 44 of the Spanish Code.
For the text of the proposed revision concerning marriage and divorce, see Report of the Committee to Revise and Compile the Laws of Puerto Rico, Vol. II, Parts IV and V (1901), p. 633. For the Commentaries on that same revision — in which nothing is said about betrothal — see the report supra, Vol. I, pp. 201-203.
Louisiana recognizes the promise of marriage as being a contract, and damages are recoverable under the provisions of § 1934 of its Civil Code—equivalent in part to our § 1059. Morgan v. Yarborough, 5 La. Ann. 316 (1850); Smith v. Braun, 37 La. Ann. 225; Johnson v. Levy, 118 La. 447, 43 So. 46. See, also, 24 Tulane L. Rev. 501 et seq.
Bouvier v. Contreau, S. 1938, I. 492. Regarding the original text of this decision and commentaries thereon, see Capitant, Les Grands Arrets de la Jurisprudence Civile, 2d ed. Paris (1940), pp. 15-16. See, also, Brockelbank, The Nature of the Promise to Marry — A Study in Comparative Law, 41 Ill. L. Rev. 1, 24-25. Brockelbank’s analysis on the state of the French law under this decision appears at pp. 19-23 of that article.
2 Laurent, Principios de Derecho Civil, Spanish version (1912), p. 452 et seq.; 2 Planiol-Ripert, Derecho Civil Francés, Spanish version (1939), p. 66 et seq.; 1 Colin y Capitant, Spanish version (1952), p. 310 et seq.
According to the French courts, “the execution of a promise of marriage cannot by itself give rise to an action for damages, since ‘it would encroach indirectly on the freedom to marry.’ In other words, the future consent to contract the proposed marriage cannot be the object of an effective promise. The breach of this promise may only give rise to an indemnity for damages to the future deserted spouse whenever the former is accompanied by circumstances which render it a prejudicial fault.” They maintain this view as “a juridical application of the provisions of § 1382 of the Civil Code which does not violate any of the principles of our law.” Colin y Capitant, op. cit., p. 314.
“The prevailing theory of the decisions and the French doctrine is predicated on the fact that “marriage is not commercial and cannot be the object of an obligation to perform. As rightly stated by Laurent, ‘a promise to marry is not a promise made by a debtor to his creditor.’ Nor is the concept of precontract acceptable, since marriage is not only a pure contract but also an institution by which the spouses abide of their own free will.” Planiol-Ripert, op. cit., p. 67.
“In rejecting the theory of the validity of the promise of marriage as a binding contract at civil law, the authorities have not intended to allow the offending party to remain immune to all reparation, whenever such breach is detrimental to the ex-fiancée. The same judgments which have rejected the payment of damages under § 1142 have applied §§ 1382 and 1383.” Planiol-Ripert, op. cit., pp. 68-69.
“What constitutes the essence of this union [matrimony] from a legal point of view? The most absolute freedom at the act of the ceremony. Hence, the promise of marriage cannot create a legal tie; this means that it is not compulsory; consequently, it is void. In order to admit it, an express provision in the Code would be necessary; the silence of the latter is sufficient to render the promise invalid.” Laurent. op. cit., p. 457.
On the strength of the foregoing principle, the authorities and the doctrine have established that “the fact alone of the nonperformance1' of the proposed marriage cannot by itself warrant a judgment for damages, since this would be, under a new form, an encroachment upon the freedom of marriage. If, therefore, a judgment for damages lies against one who breaks a promise to marry, such judgment cannot be based on an obligation derived from a contract. The true reason for so deciding is found in § 1382, according to which ‘every act of man which causes injury to another obligates the one by whose fault it happened to repair
See, also, 1 Henri y Leon Mazeaud, Tratado Teórico y Práctico de la Responsabilidad Civil, Spanish version, pp. 61-62.
In the Anglo-American common law the promise to marry is of the nature of a contract, and its breach gives rise to an action for damages. The public disfavor in the United States toward this type of actions has prompted a great number of states to enact legislation to abolish them. Brockelbank, The Nature of Promise to Marry—A Study in Comparative Law, 41 Ill. L. Rev. 1; Feinsigner, Legislative Attack on “Heart Balm,” 33 Mich. L. Rev. 979; Brown, Breach of Promise Suits, 77 U. of Pa. L. Rev. 474; Wright, The Action for Breach of Marriage Promise, 10 Va. L. Rev. 361; Cousens, The Law of Damages as Applied to Breach of Promise of Marriage, 17 Cornell L.Q. 367.
See, also, Abolition of Actions for Breach of Promise, Enticement, Criminal Conversation and Seduction, 22 Va. L. Rev. 205; Physical and Mental Conditions as a Defense in Breach of Promise, 83 U. of Pa. L. Rev. 998; Avoidance of Incidence of Anti-Heart Balm Statutes, 52 Col. L. Rev. 242.
In the Philippine Is., where §§43 and 44 of the Spanish Civil Code, which was extended to those Islands, were abrogated as of December 31, 1889—Benedicto v. De La Rama, 3 Phil. Rep. 34—the Supreme Court has recognized the allowance of compensation for damages in this type of actions on the theory of fault — § 1902 of the Civil Code of the Philippine Is., equivalent to § 1802 of our Code. García v. Del Rosario (1916), 33 Phil. Rep. 189, 193.
Planiol Ripert, op. cit., p. 70 et seq.
The findings of fact made by the trial court do not embrace all those particulars which it would have been proper to include therein, had the action been regarded as one for damages predicated on § 1802 of the Civil Code.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.