Breach of Promise in the Wider Social Context

Though the entire system has been described by some modern-day scholars as barbaric, or perhaps even a throwback to mediaeval times when society had no alternative form of justice, embedded deep within the law of torts are the moral wrongs that society views as legally actionable.[1] The legally actionable wrongs of slander/libel, products liability, fraud, malpractice (in all of its various forms), trespass to land, intentional infliction of emotional distress, wrongful birth, breach of contract, false imprisonment, battery, assault, nuisance, and the modern privacy torts- as well as many others- all have in common that they are moral wrongs that society sees as grave enough to give individual, everyday citizens a private right of action against the individual who has committed such wrongful acts against them.[2] These wrongs are also considered to be what has been termed relational wrongs. In short, the body of tort law (the word “tort” taken from French and meaning “wrong”)[3] -our civil law- tells individual citizens what is right or wrong. It tells individual private citizens how it is that they should behave toward one another. The alternative is streamlined administrative procedure, which, while occasionally giving monetary compensation to those who have been victimized, nonetheless robs victims of the “satisfaction” of private retribution.[4] Our civil laws set the moral standards and inform individual citizens about how they should and should not relate to one another. This is why it is so fundamental to examine our laws- and as well to examine our social movements- and the message that they ultimately convey to the public at large. If the law no longer grants a remedy, then that can only mean that society at large no longer sees that a fundamental wrong has occurred for which compensation can or should be granted.

In no better way can this be seen than in the family or issues of human sexuality. Reformers, feminists, and laypersons pummeled the legal system at every level in the 19th and early 20th centuries for allowing individual female plaintiffs to bring suit against men who had seduced and abandoned them.[5] These were the age-old breach of promise suits, and the purpose was to grant tort compensation to women for what was perceived as a social, legal, and moral wrong that had been committed against them.[6] Of course, men could bring these suits as well, but mainly breach of promise was considered to be a woman’s remedy.[7] Why? Perhaps because society saw something very fundamentally different about female sexuality as distinct from male sexuality- something precious, something special about it. If society no longer grants a remedy, then it can only be because society no longer views that any wrong has so much as occurred for which compensation can or should be granted. Society no longer views female chastity or modesty as valuable and something worthy of social and legal protection. It also implies wider-held views about marriage in general. If there is no fault to end a marriage, then why should one be at fault for failing to perform this implicit contract in the first place? The implication is clear: a woman should toughen up, wipe her tears, be independent, just give the ring back already,[8] and move on. Was this not the point? If the law drops sex-specific protections for the female sex, then society will- eventually- no longer hold paternalistic attitudes toward women.[9] This supposedly makes women equal. Or does it?

 Though it may seem foreign to the common layperson, one of the fundamental premises of our civil law is to prevent one party from being unjustly enriched at the expense of another- to level the difference when there is unequal bargaining power between individuals, or when individuals are simply not on equal footing.[10] Marriage is a civil contract that has gone through much reformation throughout the centuries. In keeping with the ideas of equal justice, the doctrine of promissory estoppel estops the breaching party from claiming that there was never a completed contract in order to avoid liability (even if the particular bargain would fall under one of the statutes of frauds) whenever the other, non-breaching party has relied upon the promises made to their detriment.[11] This was clearly the case with the quasi-tort, quasi-contract breach of promise doctrine. True, the male could bring suit as well if the woman backed out after promises were exchanged. However, in keeping with long-standing societal norms, it was always generally the woman whose reputation suffered if she had given herself to the man (loved him, had sexual intercourse, got pregnant, etc.). Sex and pregnancy were the major issues involved with breach of promise. The common viewpoint and rationale underlying these suits was that, “If he leaves her in the lurch, she has lost social position, she is damaged goods in the marriage market, is often saddled with a bastard child- and has lost her chance for a home and social position.”[12] Our laws understood the detriment and harm inflicted- and likewise granted a remedy. She had relied upon the male’s promises to her detriment. More than just mere subjective feelings,[13] she had suffered a legal wrong. Of course, today, none of these are wrongs whatsoever. Rather, they are social norms. They are our modern-day culture’s way of life. Wasn’t this the point? All of the bulleted points of legitimacy, marriage, monogamy, home, social position, virginity (or at least the presumption of virginity), and fulfilling the promises -as well as contractual obligations- of marriage, are no longer relevant. Regardless of whether or not “good girls” should have been airing their sexual indiscretions in public courtrooms,[14] the point was still that the law recognized the wrong. For the few states that, by the 1930s, had not statutorily stripped the right of action for breach of promise, the few suits that might be brought nonetheless had little effect.[15]     

Beyond the issues of male and female sexuality, of course, are wider issues of how society views marriage in general. The early 20th century was a time of many changes, and marriage was no exception. Female sexuality was no exception either. Sexuality was to be free, liberated, and pornography was to be seen as a First-Amendment free speech issue.[16] Sex was sex. Illegitimacy didn’t matter. By framing everything in terms of being about children, women could be sexually free- men and women could “shack up”- because there were no longer any legal repercussions for any party- man, woman, or child. By framing all issues around children, men and women could thereby be relieved of responsibility for their moral and sexual transgressions and society and the law could re-frame legal reforms as being about doing wider social good in the public interest. Gender-neutral laws subsequently stripped the female of her sexual bargaining power to induce the man into marriage- as well as her bargaining power when it ended.

But why does this matter? Perhaps because the law is a reflection of society. The law also mediates social morality by telling its citizens- through the civil and criminal laws it enacts- what is right and what is wrong and how individual citizens should relate to one another and act toward one another.[17] Obviously, the point of stripping the cause of action of breach of promise was none other than to artificially put male and female sexuality on equal terms-to make it seem as if there is no difference between the sexes. If the law states that female sexuality is nothing special, and that it is not worthy of any special protection, then this quickly becomes- in a generation or two- the moral compass which guides the citizenry. The idea, of course, was simple: female sexuality is not precious- it is not special nor worthy of special protection. Isn’t this what modern-day society believes? But does this actually accord with reality? Would empirical, observational analysis of the happenings in the “real world” support the hypothesis that men and women do not really have different sexual motivations, desires, intentions, or that they don’t feel differently or perceive all issues revolving around sex and its subsequent consequences differently from one another?  More than that, the so-called “sexual revolution” that followed clearly had in its purpose the demolishing of the value of human sexuality in general to where it became just some common occurrence that’s “no big deal.” The message was clear: It’s just sex. Get over it. But despite this, most women are still harmed (and oftentimes still quite severely) as a result of this loss of bargaining power and loss of sex-specific legal protections, rights, and remedies at multiple levels.

If the end goal of the law is equal justice and the leveling of bargaining power, then it has clearly failed. If products liability tells manufactures not to harm unsuspecting citizens with dangerous and harmful products; if slander and liable tell the citizenry not to bear false witness against their neighbor; if medical malpractice acknowledges the first rule of medicine of “do no harm;” if fraud tells the citizenry that running a scam on another is wrong; if trespass to land acknowledges the value of private property to be inviolate; if nuisance says one can go too far in annoying one’s neighbor; if intentional infliction of emotional distress warns individuals they might be liable for relentless taunting of one they know to be vulnerable; if false imprisonment protects one against physical restraint by their fellow citizen; if tortious interference with contract tells the citizenry not to unjustly harm another’s business engagements-[18] then what tort (or, for that matter, any law) now tells the citizenry that marriage, the mutually exchanged and relied upon promises of marriage, as well as the value of female honor and sexuality, are important enough for the law to acknowledge them? Granted, breach of promise was a very “messy” cause of action which probably caused social disruption and discontent at various levels.[19] (Surely modern-day family law civil disputes are just as bad- if not more so- but I have yet to see any modern attempts at legislative reform in this area of law for the sake of “the public morals.”) Nonetheless, its existence still validated long-held fundamental principles of law and society. It showcased what the people upheld and valued as important. That, I believe, was the real point of the existence of the tort- to uphold virtue, honor, and marriage as socially and legally valuable, and sex more than just about private feelings that society and the law had no business interfering in. Of course, the tort originated in a time where exchange of property before marriage was common. This probably played a major role in justifying the cause of action (scholars agree that the action mainly became doomed in the late 19th and early 20th centuries when it became about “jilted feelings” and little more).[20] It is probably the case that the cause of action would not be practical in modern times and would probably do more harm than good. However, there are still other ways to protect human sexuality, marriage, family, and the female sex without resorting to private lawsuits.[21] We as a society can always take lessons from history, enacting legislative reforms, barring specific causes of action even if it means sex and other forms of discrimination, and by allowing judges to take judicial notice of the readily observable facts of life, such as the differences between man and woman, mother and father, husband and wife, etc. The Supreme Court’s mid-20th century and beyond involvement in what was once considered the business of local and state governments has made such a task difficult- but that can always change. Precedent can always be overturned, of course. One final word here I would like to mention is that it should not be assumed that this is a Republican vs Democrat issue, either. Both life and law are far too complex to draw such bright lines.            

[1] John C.P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts (2010). One author has even gone so far as to frame tort law as being about “the promotion of human dignity within a social community.” Val Corbett, The Promotion of Human Dignity: A Theory of Tort Law 58 Ir. Jurist 122 (2017).

[2] Goldberg & Zipursky, supra note 1.

[3] Id. at 1.

[4] George C. Christie & Joseph Sanders, Advanced Torts Cases and Materials 398 (2d ed. 2012).

[5] See, e.g., Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (1985). (detailing changes in American family law throughout the 19th and early 20th centuries).

[6] Lawrence M. Friedman, American Law in the 20th Century 433-34 (2002). (discussing “the heartbalm issue.”)

[7] Id.

[8] John G. Sprankling, Understanding Property Law 47-48 (3rd ed 2012) (the engagement ring was given (in the majority of cases one can assume even today that the man is the one giving the ring) “subject to the implied condition subsequent of future marriage” Id. at 47). So, he has a cause of action to recover the ring if marriage didn’t happen. Yet, if she gives sex to him, she has no cause of action whatsoever if the marriage does not take place. The law no longer even bars him from pursuing parental rights- another private right of action the law now gives him personally against her- should she become pregnant. Naturally, when the sexes are subject to equal treatment, the male is the winner and the female the loser in nearly every case.; See also Rebecca Tushnet, Rules of Engagement, 107 Yale L. Rev. 2583-2618 (1998). (detailed conversation and theory regarding breach of promise suits and controversies surrounding court’s involvement of the returning of the engagement ring). Of course, now what frequently happens is that the female is the one sued when an engagement is broken off, usually for return of the engagement ring, but perhaps also for even more money damages on account of alleged gifts given by the male in exchange for marriage- another area where women have been harmed by the various family law reforms including, but most certainly not limited to, the enactment of no-fault divorce statutes: “Simultaneously, the incommensurability of love and money has been invoked to prevent certain kinds of injuries suffered mainly by women from being recognized in court. Social realities have meant that the majority of successful post-reform plaintiffs, unlike the plaintiffs in prereform cases, have been male.” Id at 2608.

[9] See, e.g., Louis Fisher & Katy J. Harriger, American Constitutional Law 845-902 (10th ed 2013):

By the year 2000, all states had enacted gender-neutral statutory rape laws, even though the Supreme Court in 1981 in the case of Michael M v Sonoma County Superior Court, 450 US 464 held that the state could lawfully penalize only the male, even if both sexual partners were under the age of 18. Thus, the state could “reasonably create a deterrent for men only in the law.

Id. at 860.

Modern day scholars make no secret about their biases that the sexes should not be treated differently. They do not even put on the pretense of impartiality. But the real issue is what this message (gender-neutralizing of all of the laws) conveys to society at large. Negative reinforcement and punishment are utilized against the female sex to send home the prime message of “equality”: Treat them the same. Society has thus internalized the message and absorbed it into the everyday life and culture.

Interestingly enough, however, modern neuroscience has demonstrated that males and females do indeed differ at the very neuronal level where sexual motivation and initiation is concerned. In males, the preoptic area of the anterior hypothalamus generally controls sexual behavior. This area of the brain generally leads males to seek out a sex partner, and rats who have had this area of the brain lesioned largely lose this initiative. In females, however, the lower, central ventromedial hypothalamus has been shown to be the key player. In general, neurons in this area become activated, and estradiol- an estrogen hormone regulating sexual receptivity- is released. Neurons of the ventromedial hypothalamus also send impulses to prime regions in the midbrain responsible for defensive behaviors. If the female becomes aroused (typically as a response to male initiation of sexual behavior), these defense responses are then weakened and lordosis behavior typically occurs as a result, if the female wishes to mate. See e.g., Sudeep Bhatia & George Loewenstein, Drive States, Noba, (Last Visited April 3, 2022). Modern science appears only to confirm what our ancestors had always known.   

[10] See generally, Thomas D. Crandall & Douglas J. Whaley, Cases, Problems, and Materials on Contracts (7th ed 2016). (casebook on contracts).

[11] Id.

[12] Friedman, supra note 6, at 433.

[13] The defining of marriage as being primarily about feelings- a viewpoint that took off strongly in the late 19th and especially throughout the 20th centuries- was also part of the problem with breach of promise. Damages cannot truly be ascertained, anyway, as “love” is a subjective and fleeting emotional state that cannot be objectively measured- and the law just doesn’t have the time or resources to deal with mere “feelings.” See, e.g., Tushnet, supra note 8, at 2584-85. Defining marriage to be only about love and feelings undoubtedly has led to the re-defining of marriage in countless other ways, as well: For instance, same-sex marriage.

[14] Grossberg, supra note 5, at 45-56; see also Rosemary J. Coombe, ‘The Most Disgusting, Disgraceful and Inequitous Proceeding in Our Law’: The Action for Breach of Promise of Marriage in Nineteenth-Century Ontario 38 U. Toronto L. J. (1988). (Thorough analysis of Victorian morals and breach of promise suits in 19th century Ontario.)

[15] Friedman, supra note 6, at 433-434.; see also Mary Coombs, Agency and Partnership: A Study of Breach of Promise Plaintiffs, 2 Yale L. J. & Feminism 1, 4-11 (1989).

[16] Miller v California 413 US 15 (1973).; Case Categories: Obscenity and Pornography, The First Amendment Encyclopedia. (last visited April 3, 2022).

[17] A decent analysis on the changing role of the law as regards social life in general can be found in Lawrence M. Friedman, Total Justice (1994) (discussing the criminalization of modern social ills- such as drugs and abortion-, as well as the commonly held belief that society has become too “litigious,” and that there is “too much law” and “too many lawyers”).; See also Russell Hardin, Law and Social Order 11 Soc., Pol., & Legal Phil. 61-3 (2001) (legal theory from Hobbes to Posner).; Hans Kelsen, The Law as a Specific Social Technique, 9 U. Chi. L. Rev. (1941) (Kelsen’s classic and intriguing political philosophy).; Lawrence M. Friedman, Legal Culture and Social Development, 4 Law & Soc’y Rev. (1969). (A wonderful early work by Friedman where he weaves together law, comparative law, sociology, culture, and history- and how they all influence one another. I have long been a fan of Friedman’s style in this regard, having been a lover and avid reader of his books and articles for many years now… How did the law get to this point? Only Friedman could ever expound on the subject so wonderfully).

[18] See Goldberg & Zipursky, supra note 1, at 1-8.; see also Christie & Sanders, supra note 4, at 115-131, 434.

[19] The Illinois statue in 1935 abolished these “heartbalm” actions “to promote public morals.” Tushnet, supra note 8, at 2587 n. 14.

[20] See Tushnet, supra note 8, at 2586.

[21] There were many other kinds of torts involving personal relationships beyond breach of promise, including alienation of affection, loss of consortium, criminal conversation, and seduction (the latter, much like breach of promise, being a woman’s remedy until it was held to be unconstitutionally sex-discriminatory by some courts because the suit could only be brought against men). If breach of promise was not available because there was no promise to marry, a female, or her parents, could bring a suit for seduction, especially where pregnancy had occurred. For an overview, see James M. Fischer, Understanding Remedies 644-64 (2d ed. 2006).