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Case 8 - Contracts Restraining Marriage

Published online by Cambridge University Press:  11 February 2021

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Summary

Mr Strict entered into a contract with his daughter, Clementine, to pay for her round-the-world trip in return for her promise to only marry a man belonging to Mr Strict's faith. During the trip, Clementine fell in love with Mr Dreamy, who belongs to a different faith from her father, and married him. Mr Strict has now brought an action for breach of contract and is consequently demanding repayment of the amount he spent on Clementine's trip. Is the contract between Mr Strict and his daughter valid? Can Clementine challenge the action brought forth by her father?

Variation: Would it make a difference if Clementine fell in love with Miss Dreamy, who belongs to the same faith as her father, and entered into a civil partnership with her?

Case Reference: Lowe v. Peers [1768] 4 Burr 2225.

AUSTRIA

OPERATIVE RULES

At least the obligation incurred by Clementine is not valid. Clementine can challenge the action brought forth by her father.

Variation: There would be no difference.

DESCRIPTIVE FORMANTS

Austrian law provides explicit regulations for comparable, though not fully identical, stipulations in the law of successions, which are made applicable to bilateral contracts by way of reference. The following discussion will first deal with these statutory provisions, which concern benefits granted under a condition of not getting married, in order to reveal the relevant values and policies pursued by Austrian law in this area, and then turn towards the contractual arrangement at hand in Case 8, i.e. a bilateral contract under which both parties oblige themselves to some performance, here, in Clementine's case, an obligation not to marry a man of a different faith than her father’s.

Until a recent reform of the law of successions, which entered into force on 1 January 2017, Art. 700 CC explicitly provided that a condition stipulated in a will, according to which an (adult) heir or legatee may not marry, is to be treated as if it were “not included” in the will. The heir or legatee may thus receive the benefit without any condition. As for the policy pursued by former Art. 700 CC, see section 1.3 below.

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Publisher: Intersentia
Print publication year: 2020

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