Considerations on regulating the engagement in the new romanian Civil Code and some foreign legislation

Author:Dan Lupascu, Raluca Gâlea
Pages:155-176

Dan Lupascu. Associated Professor, Judge, Ph.D., Faculty of Law, “Nicolae Titulescu” University, Bucharest and member with permanent activity of Romanian Superior Council of Magistracy (danlupascu@csm1909.ro). This work was supported by CNCSIS –UEFISCSU, project number 860 PNII – IDEI 1094/2008.

Raluca Gâlea. Judge, head of Directorate of European Affairs, International Relations and Programmes within the Romanian Superior Council of Magistracy.

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1. Introduction

The engagement1 has a considerable history, being mentioned even in the Old Testament, under the Hebrew term of „aras” having the meaning of „engagement to marry”2 or „vow to marry”.

As regards the religious implications, the man and woman were already considered as husband and wife, without the right to sexual relations until the marriage3. According to Vasile the Great, breech of these interdictions was sanctioned with exclusion from communion for 11 years.

Considering the engaged persons as being married also implied a series of extremely severe consequences. For example, the priest could refuse to wed a person who was initially engaged during a religious ceremony with another person than the one the former intended to marry. Also, the 98th Canon of the Sixth Synod considered wedding a woman engaged to another man as adultery (and punished the offender).

The engagement – a symbol of the union between a man and a woman – after the solemn vow to marry, was also known in the Roman law4 by the term „sponsalia”.

According to the Roman tradition, the engagement ring – awarded for this occasion – must be worn on the left ring finger considering that at the base of this finger starts „vena amoris” (love vein) that went up to the heart.

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In our country, it was the custom for the parents of the boy (the future “greater” parents-inlaw) to go and “ask in marriage” at the parents of the girl (the future “smaller” parents-in law). The two families mutually agreed the details of the wedding (term, place, guests) and the dowry. Sometimes, the girl was asked in marriage from her parents only by the future husband.

In certain geographic areas it was used to bring a pledge (usually an amount of money, named „capara” or „arvuna”), that was returned if the engagement was breeched5.

The engagement was sealed by putting the engagement ring on the ring finger of the girl’s right hand6. Subsequently, in order to receive the divine blessing, the two partners went to church where the “ceremonial of engagement”, was performed at least one month before the marriage7. On this occasion, the engagement rings (usually made of silver) were put on, and were worn on the right hand of the future married couple, until the wedding ceremony.

The involvement of the church strengthened the engagement to be considered as “conform and solid”.

This custom is somehow kept until today, the wedding ceremony being preceded, in the same day, by the engagement ceremony.

The traditional pattern of the wedding proposal suffered severe transformations: thus, in some situations, even the roles are inversed, so that the man is now proposed.

As regards the spiritual side, the engagement is almost as important as the marriage because it signifies the mutual declaration of the feelings and the vow to wed, supplemented by the blessing of the relationship by the parents and priest.

It is also important from the legal point of view only if it acknowledged by the law to this end.

Our old regulations8, as well as the old French law9, regulated the engagement, as a covenant, generating for the parties the obligation to do, namely to conclude of the marriage. Non execution of this obligation triggered the punishment of the party who without reasons refused to do so, to pay reimbursements to the other party.10. Still, the agreement on damages (clauza penala) was not admitted.

Starting with the 17th century, under the powerful influence of the legal doctrine and of the case-law, in order to ensure the full liberty of the agreement of the parties to wed, it was set the engagement has no legal validity as a contractual matter11, still the practice admitted the possibility for a tort responsibility in the case of a faulty breech of the engagement.

Due to the fact that, lacking a legislative consecration, the courts admitted for “a young man deceived in his hopes by the unlawful breech of the engagement, the right to ask the restitution ofPage 157 gifts and fair damage claims”12, sharp criticism appeared13 and some states reconsidered their point of view on engagement.

On this backdrop, the engagement was regulated by the Civil Code of Carol II in 194014, that never entered into force. At that time the engagement was also regulated in Transilvania (where the Law XXXI of 1894 was applicable), and also in Bucovina (where the General Austrian Code was applicable).

2. Legal framework

The new Romanian Civil Code regulates the engagement in the Second Book (On Family), Title II (Marriage), Chapter I (Engagement), articles 266 – 270.

Also, this institution is regulated by foreign legislation, for example the engagement exists in the Swiss Confederation, Italy and also in the Anglo – Saxon system.

3. Definition and legal nature

According to the influence of some older regulations, the engagement was defined in the specialized literature as being “the mutual agreement between two persons in order to wed”15 or „the mutual promise of two persons to wed in the future”16.

Basically, both definitions comprise the same elements, namely: the expression of will, enacted by the mutual confidence; the bilateral type of agreement; the object of the agreement: sealing the marriage in the future.

The new Civil Code uses the following enunciation: „Engagement is the mutual promise to wed”17. The same normative act defines marriage as being a „ (…) freely accepted union between a man and a woman, concluded according to the provisions of law”18.

Comparing the two texts of law it can be noticed that for engagement it is underlined, exclusively, the mutual agreement and for the marriage the highlight is put on the legal status subsequent to the expression of will.

Is this differentiation justified?

In our opinion the answer must be negative, considering that both institutions have the origin in a legal act, but generate a judicial status regulated by law that can not be ignored.

Consequently, the term of “engagement” has a double sense: of legal act and of legal status. The legal act of engagement is the previous agreement of the future married couple which shall be perfected by sealing the marriage.

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The use by the legislator of terms as “mutual promise” may lead to the idea of covenant, more precisely that of “pre-covenant”. Furthermore, on this backdrop, the bilateral essence of the agreement may be considered.

All those issues may thus legitimate the conclusion that a contract is present in this case? In our opinion, this conclusion is not possible, because there are several differences between the act of engagement and a covenant as regards: the quality of parties; appearance of the approval; breeches of approval; capacity of the parties; the scope; the method for appraising the judicial effects; the possibility to be affected by modalities; cases of nullity and the regime of nullity, etc.

In fact, this is a legal act within the family law or, in other terms, a legal act sui generis, that involves a certain legal status for engaged persons.

It can be noticed that the legal definition of marriage perfectly matches the engagement that is, in essence, still a “union” (as regards the concept of association, connection between two persons for a common goal) freely accepted between a man and a woman, concluded according to the provision of the law.

The difference is mainly provided by the pursued goal: by closing the engagement the sealing of marriage is “prepared” that also aims at establishing a family. In other words, the engagement is only a project for marriage.

It is necessary to underline that marriage is not conditioned by the engagement, as the engagement does not transform itself into a marriage.

Concluding those issues, we define the engagement as being the optional legal status, preliminary to marriage, born from the mutual promise made, according to the provisions of law, between a man and a woman to wed.

Thus, the engagement is a real civil institution grounded on the expression of will of the future grooms, as materialized in a legal act.

4. Legal characteristics

The institution of engagement19 has the following judicial characteristics:

1) The engagement is a union between two persons

The act of engagement involves an association (connection) between the two persons for a common goal: to wed.

2) The engagement is between a man and a woman

As a judicial status preliminary to wedding, the engagement borrows these essential characteristics, being forbidden the engagement between persons of the same sex.

On the other side, as marriage is governed by the principle of monogamy, as a consequence of the exclusive character of love...

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