Case Number

CA 337/62

Date Decided

5-15-1963

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The appellant, a married man, and the respondent formed a liaison with the intention that they would marry on the appellant obtaining a divorce from his wife. Soon after he acquired an apartment out of his own money and had it registered in the respondent's name. It was understood, however, that the apartment did not belong to the respondent, its registration in her name being a token of their mutual affection, and that if they did not marry, the apartment would be transferred back into the name of the appellant. Subsequently they fell out and the respondent barred him access to the apartment. The appellant sued for a declaration that the apartment was his and an order for possession. The respondent defended by pleading that his claim was based on agreement which was immoral and contrary to public policy. Her defence succeeded in the District Court: hence this appeal.

Held (Olshan P. and Silberg J. dissenting),

(1) Whilst the law in England regarding breach of promise by an already married person is based on the sacramental nature of marriage - although modified in recent times - in the Jewish law of marriage and divorce the position is different, marriage being not a status but a contractual tie, even of a most solemn kind, which may always be dissolved by agreement. Consequently (per Cohn J.) an agreement with another woman, during the subsistence of an existing marriage, does not offend against public order or morality. Alternatively (per Witkon J.) where the existing marriage has virtually collapsed, a promise to marry another will not have the dire effects which are implied by an appeal to public policy and morality.

(2) The agreement as to future marriage must be distinguished from the agreement over the apartment. Whatever may be said about the first. there is in respect of the latter - which in many respects was in the given circumstances extraneous to the promise of marriage - the conflicting but equally important principle of the sanctity of contracts. In any event, no justand desirable result can be reached unless that agreement is given the benefit of the doubt.

Per Silberg J.

In the moral conception of Jews everywhere extra-marital sexual relations are improper and vile because they undermine the purity of family life. The agreement over the apartment was here inseparably bound up with the promise of marriage and was therefore immoral.

Keywords

Contracts -- Interpretation, Contracts -- Promise of Marriage, Jewish Law

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