Published online by Cambridge University Press: 10 August 2009
In 1997 A and B became engaged to be married. The wedding was planned for June 2000. At the beginning of the engagement B gave A a diamond engagement ring which cost him €750. In April 2000, B paid a (non-returnable) deposit of €1,500 to the caterers who were to prepare the food for the wedding reception; and in May he made a (non-returnable) advance payment of rent (amounting to €2,000) on a flat which he and A were to rent as their first home together after their marriage. The day before the wedding was due to take place, A told B that she no longer wished to marry him. What liability (in contract, tort, restitution, or any other form of liability), if any, does A have to B?
The ABGB includes two provisions on engagements and the consequences of the unjustified breaking-off of negotiations. For some authors the engagement is a form of precontractual obligation, but the majority opinion is that the ‘betrothal’ is a preliminary contract to a marriage with certain characteristic features, such as its lack of enforceability.
§1247 ABGB states in its second sentence that, ‘if one betrothed party promises or makes a present to the other party, in view of the future marriage, such donation can be revoked if, without any fault on the part of the donor, the marriage does not take place’.