DE SILVE v. JUAN APPU

093-NLR-NLR-V-29-DE-SILVE-v.-JUAN-APPU.pdf


( «7 )
Present: Schneider, Garvin, and Dalton JJ.
DE SILVA v. JUAN APPU.302—D. G. 0alley 24,333.
Contract—Agreement by brother to give sister in marriage—Public policy—Validity.
Per Schneider and Garvin JJ. (Daivton J. dissentients).
A contract by which a brother promises to give his minor sisterin marriage before a special date and undertakes absolutely, thatif his promise remains unfulfilled by that date, he will pay a sumof money, is invalid.
T
HE plaintiff sought to recover from the defendant a sum ofRs. 8,000 as damages for breach of an agreement entered
into between them which was in the following terms: —
“ I, Ambalangodage Juan Appu de Silva, whose signature appearson the 6-cent stamp below, do hereby promise to givein marriage one of my sisters, A. Mapi Nona, to A. Richardde Silva of the same village before the expiration of twoyears from the date hereof. If this falls through or iffor some reason such as any objection raised or beingraised by me or any other member of the family thiscannot be carried out, then I further bind myself to payon demand a sum not less than Rs. 8,000 to the said A.Richard Silva either as a fine, compensation, or recompensefor any discredit that he may suffer thereby.MThe defendant pleaded that the document was of no force oravail in law, and further that his 6ister refused to marry theplaintiff. The learned District Judge held that the agreement wasnot enforceable in law and dismissed the plaintiff's action.
H. V. Perera (with D. E. Wijewardene), for plaintiff, appellant—The defendant promised to pay the plaintiff the sum of Rs. 3,000upon his failure to bring about the marriage within two years. Thedefendant failed to do so. Therefore his liability is an absolute one.The question of public policy does not arise as this contract is onerecognized as being good under the Roman-Dutch law. TheEnglish law does not govern the case. Under the common law acontract of this nature is valid even when a stranger is a party to it.(Lee’s Introduction to Roman-Dutch haw, 2nd ed., p. 224.) The casemay be decided on the analogy of a marriage brokerage contract.In the case reported in 17 N. L. R. 6 (Livera v. Gonsalves) a marriagebrokerage contract was held to be unenforceable. However thatcase only considered the English law but did not go fully into theRoman-Dutch law.
14
1988
De Silvav.
Juan Appu
C 418 )
Iii King v.. Gray.1 the South African Courts held in effect thatit was not quite' clear whether under the Roman-Dutch law amarriage brokerage contract.was enforceable. (Kotze’s Van Leeuwenvol. II.t p. 633, 1923 ed.)
If a father covenants, to bring about a marriage between hisdaughter and another party under similar circumstances, such acontract ip valid (Abdul Hameed v. Peer Cando 2).
This principle can be extended to cover the present case. It isequally a principle of public, policy that parties should be held totlieir contractual obligation.
T. Weeraratiie (with, <?. V, Ranawalce and M. C. Abeywardcne).for defendant, respondent.—rTke mother was alive at the date ofthe execution of the contract. That being so, even if the principleenunciated in Abdul Hameed y. Cando (supra) is to apply, it will bethe mother who should be the party to be bound. But this contractis contrary to public policy as it fetters the free will of a third person.The law will not allow A to compel B to marry C. To do so wouldbe. to impose a restraint upon the freedom of choice.
Counsel cited Hermanh v. Charleswortlif PammodemmpUlai v.Pangamuttujrilbai, * Hendrick Sinno v. Haramanis et al Fernandov. Fernando, 6 Liycra y: Gonsalves 7
In King v. Gray (svprq) the question of public policy in relation tocontracts of this nature vsfc fully considered and it was held thatthey were prejudicial to the public welfare. ,
* Under the English law these contracts are definitely consideredto be against public policy (see Hermann v. Charlesworth (supra) ).
May 23, 1928. Schneider J.—
During one N stage of the argument of this appeal I was notconvinced that the contract' upon which this action is based wasone which was not enforceable, but a further consideration of thearguments and a careful study of.my brother Garvin's judgmenthere settled all doubts. I ,agree entirely with his judgment andthat the appeal should be dismissed with costs.
Garvin J.~^~
The question which arises upon this appeal is whether the contractset out in the writing of February 10, 1925, and filed of record isvalid. The writing is in Sinhalese and the translation filed of recordis as follows: —
‘*1, the under-signed, on 6-cent stamp, Ambalangodage JuanAppu de Silva of Peraliya, do hereby promise to getmarried my sister Av Mapi Nona to A. Richard de Silva
(1907) U S. C. 554. ,* 2 S. C. Rp. 51
15 N. L. R. 91.6 2 S. C. C. 136
(1905) 93 L. T. 284.* 4 N. L. R. 285
27 N. L. R. 6.
( 419 );
before the expiration of two years from the date hereof Orbefore the 10th day of February, 1927. If such be alteredor- by obstacles being raised – by me or by any of themembers of the family, failure to comply with the saidpromise, then I firmly hold and bind to pay either as afine, compensation, or for dishonour unto the said Rickardde Silva a sum of not less than Rs. 3,000. Accordinglyhaving set my usual signature, hereto granted the same atPeraliya on 10th February, 1925."
(Signed illegibly on a 6-cent stamp.)
The translation bears on its face indications that the translatorhas found it difficult to render the Sinhalese into its idiomaticEnglish equivalent.
This translation is not satisfactory* and counsel engaged in thecase agreed to accept the following translation made by theInterpreter of this Court: —
“ I, Ambalangodage Juwan Appu de Silva, whose signatureappears on the 6-cent stamp below, do hereby promiseto give in marriage one of my sisters, A. Mapi Nona, toA. Richard de Silva of the same village before the expirationof two years from the date hereof, that is, before the 10thof February, 1927. If this falls through or if for somereason such as any objection raised or being raised by meor any other member of the family this cannot be carriedout, then I further bind myself to pay on demand a sumnot less than Rs. 8,000 to the said A. Richard de Silvaeither as a fine, compensation, or recompense for anydiscredit that he may suffer thereby. Accordingly I haveset my signature to this on the 10th day of February, 1925,at Peraliya/’
The contract is to give a sister in marriage on or before a specifieddate, and to pay a sum of Rs. 3,000 should this obligation remainunfulfilled.
The District Judge dismissed the plaintiff’s action to recoverRs. 3,000 in terms of this contract and he has appealed.
The position of the plaintiff in regard, to this contract is set outin his plaint as follows: —
“ (3) The defendant has failed and. neglected to carry out hispart of the said agreement and now neglects to have, themarriage between his sister, who is a minor and under thedefendant’s custody, and the. plaintiff solemnized.”
It will not be noticed that there is nt> .allegation—and therecertainly is* no evidence—of any positive. apt done by the ..defendant“ or any other member of the family” to prevent the * marriage.
1928.Gabvin J.
De Silva
v*
Juan Appu
( 420 )
The plaintiff's interpretation of this contract would seem to beGarvin J. t*hafc ^e defendant’s liability to pay him damages was absolute and—-arose if this promise to give the plaintiff his sister in marriage
remained unfulfilled at the expiration of the specified period. TheJnanAppu question for consideration is whether a contract by which a brotherundertakes to give his minor sister in marriage before a specifieddate and undertakes absolutely that if his promise remains unful-filled by that date he will pay a sum of money to the other, is validand enforceable.
The mischievous tendency of a contract whereby a parentpromises to bring about a marriage between his daughter andanother to whom he is bound under a penalty seems to me obvious.The prospect of having to pay this penalty is an embarrassmentupon that absolute freedom to consult the best interests of his childwhich parents should possess and upon which a daughter is entitledto rely in so important a matter as the question of her marriage.Circumstances may arise subsequent to the making of such acontract where his duty to his child may be at conflict with his ownfinancial interests and with the obligation he has undertaken tocompel or at least to induce her marriage with a particular individual.The same considerations apply to a contract by which an elderbrother enters into a similar obligation in respect of a minor sisterwhere their father is dead. JThe law in England rests upon theprinciple that marriage should be free and without compulsion.(Key v. Bradshaw.1) " Every temptation to the exercise of anundue influence or a seductive interest in procuring a marriageshould be suppressed.”
A contract under which a parent or guardian acquires a personalbenefit which. is givea in order to induce him to consent to themarriage of his child or ward or to withdraw his opposition is void,Hamilton (Duke) v. Mohun (Lord).2 And so also presumably acontract by which a parent or guardian binds himself under penaltyto give his child or ward in marriage.
Under our law no parent—and a fortiori no brother in loco parentisin relation to his sister—has the power to dispose of a daughterin marriage independently of her will. No such custom or usagehaving the force of law—if ever there was such a custom—has tomy knowledge been recognized by our Courts. While one cannotbut be aware that among the Sinhalese—the parties to this actionare low-country Sinhalese—a father wields greater influence overhis daughters in the matter of their marriage than is perhaps thecase among European peoples, there is no reason for supposingthat it is not repugnant to their views that a parent should bebound by contract to influence and if need be to compel his daughterto marry a particular man independently of her own wishes.
1 2 Vernon 102;* 1 Peere Williams 118.
( 421 )
There are instances in our local reports of actions based on promisesand argeements which bear a superficial resemblance to the oneunder consideration. But upon examination it will be seen thatin each case it was found possible to give an interpretation to thecontract which placed it beyond condemnation.
1988.Garvin J.
De Silvav.
Juan Appu
In Tottagodegamagey v. Bolagamagey 1 the action was by thefather and the daughter sued together to “ get the banns which hadtaken place cancelled, and to recover £9. 17s. 9d. with costs beingadvances made by the 1st plaintiff." When dealing with what wasapparently an objection on the ground of misjoinder the followingobservation was made: “ It appears however to have been universalin this Island under every system of law that obtains here tointroduce the parents on these occasions, and to render themresponsible in solidum with the children, whatever their age, tomarriage engagements entered into, though verbally, with theirconsent." This is not such a contract.
In D. C. Negombo, No. 4,471 3 the action was against the fatherand the claim was for damages for not giving his daughter inmarriage. The agreement if it was in writing is not set out. Butthe judgment proceeded upon the footing that the contract wassubject “ to the implied condition that the daughter should notraise any reasonable objection to its performance " and that “ anydefence of this nature which would have been available, if thepromise had proceeded directly from her, will also be availableto the father in an action like the present."
I find it difficult to read such an implied condition into a contractwhereby the obligation to pay arises if the contemplated marriagefalls through or if it cannot be " earned out " in consequence of" any objection being raised " even by any other member of thefamily.
The following passage in the judgment is a comment on thepolicy of enforcing agreements such as the one upon which thepresent action is based: —
" Actions against a father for breach of promise to give thedaughter in marriage would induce great abuses if theplaintiff could enforce damages against a parent howeverreasonably reluctant the daughter may be, and thus makeit to the father’s pecuniary interest to exercise the parentalauthority harshly or tyrannically."
C. Colombo, No. 68,034 3 was an action by a father " on behalfof his daughter " based on an agreement by and between theplaintiff jointly with his daughter Tangamma of .the first part andthe 1st defendant of the second part and the 3rd defendant of the
(1838) Morgan's Digest 206.* (1871) Vanderstroaten 177.
8 Lorensz 236.
( 422 )
1928.
Gabvin J.
De Silvav.
Juan Appu
third part—that the 1st defendant should marry Tangamma andin default pay Bs. 50*000 by way of liquidated damages the. 2nddefendant binding himself as surety for the 1st defendant.
No question of the ‘validity of the agreement was raised orconsidered in the original Court or in appeal.
'The contract in Hendrick Sinno v. Haramanis Appu and Sirimol-hami1 was set out as follows: “ In consideration that the plaintiffshould marry the second defendant, she and the 1st defendant, herfather, agreed that she should marry plaintiff. ” Phear C.J.delivered the judgment of the Court of which Berwick J. was theother member in which he referred to the assumption in the twocases above referred to “ that a father had or assumed to have apower of donation in respect of or control over the dependantmembers of the family which enabled them to contract as principalsaccording to some custom of the country for the marriage takingplace/’ He referred to the case before him as follows: “ In thepresent case this is not so. The daughter is quite old enough andapparently well able to look after herself in the matter of marriage.It does not appear that the father has ever pretended to haveauthority by usage or otherwise to dispose of her in marriageindependently of her own will … ” He referred' to the
evidence and concluded as follows: “We do not think that weought on this very narrow foundation to conclude that the 1stdefendant (father) undertook either by way of warranty or indirectassertion of a power to dispose of his daughter’s person, that the2nd defendant, his daughter, should marry the plaintiff.”
The case decides nothing except the question of fact.
An objection was taken in Fammodarampillai v. Pangamuttu-pillai 2 to the contract alleged on the ground that any customenabling a mother to dispose of her daughter in marriage wasillegal and no contract founded on it could be enforced. Burnside
J., however, disposed of the case thus:
“ It (the libel) alleges that in consideration that the plaintiff hadagreed to marry the defendant’s daughter the defendant,her mother, agreed that* she should marry him or in otherwords, that he would have the defendant's consent to themarriage, I see nothing immoral or illegal or startling insuch an agreement.”
•The learned Chief Justice then proceeds to whittle down the value,if there is any value in such an agreement, by referring to thebreach, alleged in the libel “ that she had proposed that her daughtershould marry another” observing non-constat that the young man.will marry the young woman, or that in that proposal the defendant1 1879 2 S. C. C. 136.2 2 S. C. R. 51.
( *23 )
intended to withdraw her consent to the marriage with the plaintiff.1988.
She might have agreed to consent to the marriage of her daughter with Gabvtn- j.either of the young men and not hrohcn her contract . .
Fernando v. Fernando 1 was based on an agreement between the .father that he would give his daughter in marriage to a young man. JuanAppuwho promised and undertook to marry her within a stipulated
time—the person in default to pay Bs. 2,000 to the other. Theagreement purported to be entered into by the father on behalf ofthe daughter. The intended bridegroom married another lady.
The father and the daughter sued for breach of promise. It washeld that the daughter was entitled to adopt a contract made forher benefit. The obligation undertaken by the young man consistedof a promise to marry and was unexceptionable.
The most recent case is that of Abdul Hameed Peer Cando.2The agreement was between a father and the prospective husband.
The former agreed that his daughter Sit-tie Johara should marry thelatter, who undertook that he would many Sittie Johara. In casethe defendant’ " refused, neglected, failed, or objected to give his<laughter in marriage !* he was to pay a certain sum of moneyas liquidated damages.
Middleton J. found it- possible to construe it as “a covenant byfather of a promise to marry already made by him for and onbehalf of his daughter, to which she apparently assented.” Laterhe says: “ Nor can I see that the obligation of the father to paymoney on the breach of promise to marry by the daughter involvesany greater evil or is more contrary to public policy than theobligation of the daughter herself to pay damages for breach ofpromise.” And still later there appears the following passage: —
"It is argued that it is illegal for a parent to bind himself undera penalty to influence the feelings of his daughter towardsa marriage but this is not the case here, as the agreementto marry had been made when the contract was enteredinto. It is certainly not wrong or illegal for a parentto influence his daughter on the subject of marriage, andthe presumption would be that such influence was usedfor the benefit by a person more experienced than herself,and where an agreement has been made apparently withike consent of both daughter and parent that she shouldmarry some one. I can see no evil or illegality in theparent rendering himself responsible in damages if thedaughter declines to keep her promise.”
In short the father’s obligations under the contract appear tohave been treated as the same as those of a collateral surety for apromise made by his daughter. In the writtefi contract on whichthis action is founded there is no mention of any promise by the14 X. L. B. 285.* [19IT) 15 N. L. B. 91.
29/31
( 424 )
1928. defendant’s sister nor is there anything in the language of theG^jtvmJ document which suggests that the obligations which the defendant
* undertook were merely those of a surety for a promise previously
Dt Silva or contemporaneously made by his sister. A promise to marryJuan Appu by the young lady was not pleaded nor was any issue raised on thepoint. The plaintiff did in the course of his evidence assert thatshe had promised to marry him, but his evidence is unconvincingand has not been accepted by the District Judge.
It is impossible to equiparate the facts of this case with those ofany of the cases examined by me, nor is the language of the writtenagreement susceptible of any one of the different constructionswhich enabled 'the Court, to treat the agreements in each of theearlier cases as unobjectionable.
An agreement to pay a sum of money whether it be a penalty orby way of liquidated damages should a promise to give a sisterin marriage on or before a specified date remain unfulfilled is toodefinite to admit of any such explanation.
It is conceded that under the Roman-Dutch law contracts whichare contrary to law or public policy are invalid, but it was stronglyurged that the question of public policy involved in these mattershas been definitely settled in a sense different to that of the Englishlaw. Strong reliance was placed on the opinion Bynkershoek(vide Quae8t, Juris Privati, lib. II. cap. 6). The learned author dealsthere with the question whether a person, who had been employedto bring about a marriage, can claim a commission or brokeragefor bis services, and expresses the view that inasmuch as an agencyfor the purpose of bringing about a marriage is not. an agencyfor an unlawful object there is no reason why a person who hasrendered services in “ honourably bringing about a marriage ”should not be permitted to recover the promised reward or reason-able remuneration for the work he has done, the time he has spent,and the expenses he has bona fide incurred.
Bynkershoek acknowledges the existence of a body of opinion inaccordance with the opinion which gradually gained strength andis now embodied in the English law that a monetary reward or afinancial interest js a temptation to the exercise of compulsion orundue or seductive influences on young and immature persons inprocuring ill-advised, improvident, and often fraudulent marriages.
He prefers, however, the view that inasmuch as it is not unlawfulto bring about a marriage by fair and proper means a person whohas been employed to do so is entitled when he has. so broughtabout a marriage to remuneration for his services.
In Livera v. Gonsalves 1 Wood Renton C.J. after a considerationof the opinion of Bynkershoek held that an action by a matrimonialagent for payment of a reward was not maintainable in Ceylon
* [1913) 17 N. L. i*. 5.
( 425 )
observing with reference to Bynkershoek s opinion that the principlehas not been accepted in Ceylon. He reinforces his judgment by areference to the South African case of King v. Gray 1 which it mustbe admitted is open to the comment that DeVilliers C.J., while herefers to Groenewegen makes no reference to Bynkershoek. In thedecisions of this Court there are dicta in Abdvl Hameed t>. PeerGando (supra) and many other cases which point strongly in favour ofthe view taken by Wood Benton C.J., and it is a striking circum-stance that with the sole exception of Livcra v. Gonsalves (supra)there has not been discovered a single other instance of an actionby a matrimonial agent for the recovery of reward or commission.
There is no indication in the reported cases that any other viewwas at any time entertained or admitted in our Courts, and formy own part I should hesitate where there admittedly was adifference of opinion even in the period at which he wrote, ?.<?.,about 1,720 to take on the authority of Bynkershoek a view ofpublic policy different to that recognized by the Courts of Englandand approved and followed by our Courts.
But in the contract under consideration no question of a claimfor remuneration for services rendered botia fide and withoutturpitude in bringing about a marriage arises. Whatever viewmay be taken of that question on his authority there is no indicationin Bynkershoek !s article nor in the grounds upon which he baseshis opinion of the particular case considered by him that he regardeda contract such as the one under consideration as unobjectionable.It clearly transgresses those principles for which his opponentscontended and no differentiation is possible on the ground of aright to remuneration for services rendered.
It has been suggested that to hold that this, contract is unlawfulas being contrary to public policy would be to invent a new head ofpolicy inconsistent with the policy as settled by our common lawwhich is the Boman-Dutch law. I entirely agree that where aprinciple of public policy is established by law it is not the provinceof a judge to speculate as to what is best in his opinion for theadvantage of the community but to administer the law as he finds it,leaving it to the legislature to amend the law if that be thoughtdesirable. But I have endeavoured to show that the question of -policy at least in so far as it relates to a contract such as the oneunder consideration cannot be regarded as settled by the Boman-Dutch law in a sense favourable to such contracts. In Ceylon thereare judgments which indicate that the prevailing view for fiftyyears and more has been in complete accord with the viewapproved by the Courts of England.
That the view taken by Wood Benton C.J. in 1913 was entertainedas far back as 1872 is evidenced by a judgment of Mr. Berwick in
1 24 S. O. 554.
1928.Qabyiv J.De SilvaJuan Appu
( 426 )
1628,
Garvin J.
He Silvav.
Juan Appu
C. Colombo, No, 60,073; dated 10th June, 1672, where a contract)such as this was held to be contrary to public policy. I havealready drawn attention to the indications in judgments in theintervening period that this view has been consistently held andto the absence of any case in which a contrary opinion was expressed.The question is open inasmuch as it is not concluded by anauthoritative* decision of a Full Bench. It is competent for thisCourt to found its judgment on the prevailing view of what isfor the public good especially when that view is manifested in thejudgments to which reference has been made. For this the historyof the development of the law of England on this very question isn sufficient authority. “ There was no objection at Common lawtill perhaps some hundred years ago, to such contracts”: CollinsM.R. in Hermann v. Charlesworth.1 The existing doctrine wasengrafted into the Common law by the judgment of the House ofLords in Hall v. Potter.2
This contract is in my judgment opposed to public policy and the
claim based on it unenforceable.
*
For these reasons rT would affirm the decree dismissing theplaintiff's action and dismiss this appeal with costs.
J)ai;ton J.—
The plaintiff seeks to recover in this action the sum of Es. 3,000which he alleges to be due to him under the following circumstances.He wished to. marry the defendant’s minor sister Mapi Nona,defendant also wishing to bring the marriage about. Their fatherwas dead, but their mother was alive, defendant being apparentlythe eldest male member of the family. It is pleaded that MapiNona is under liis care, and custody. On February 10, 1925, there-fore, defendant entered into an agreement with the plaintiif,signing the following document in the presence of two witnesses: —
“ The purport of a promissory agreement caused to be drawn,signed, and granted. I, Ambalangodage Juwan Appu deSilva, whose signature appears on the 6-cent stamp below;do hereby promise to give in marriage one of my sisters,A. Mapi. Nona, to A. Richard de Silva of the same villagebefore the expiration of .two years from the date- hereof,that is, before the 3.0th of February, 1927. If this fallsthrough or if for some reason such as any objection raisedor being raised by me or any other member of the familythis cannot be carried out, then I further bind myself- topay on demand a sum not less/ than Rs. 3,000 to the saidA. Richard de Silva' either. as a fine, compensation, or
1 {1905)'2 K.B. 133.
1 Show Pari Caae 76.
( 427 )
recompense for any discredit that he may suffer thereby.
Accordingly I have set my signature to this on the 10t*h
day of February, 1925, at Peraliya.”
(Signed illegibly on a 6*cent stamp.)
Witnesses:
(Signed) R. K, D. Silva,
(Signed) D. M. G. Aron.
The period of two years elapsed without the marriage beingeffected, and now plaintiff seeks to recover the sum of Rs. 3,000agreed upon, as defendant has failed to carry out his part of theagreement, although plaintiff was always ready and willing tomarry Mapi Nona. Defendant pleads in answer that the documentP 1 is of no force or avail in law, and further that Mapi Nona, who isnow living with a maternal aunt, now refuses to marry the plaintiff.There is no allegation or suggestion in the defence that the plaintiffhimself has done anything that would justify a person in refusingto marry him.
Two issues were framed by the trial Judge: —
Is the agreement set out in the plaint enforceable in law ?
Damages ?
After ^plaintiff had given evidence, from which it would appearthat the plaintiff and Mapi Nona had agreed to marry each other,no further evidence was led on either side, but it appears to havebeen argued for the defendant that, inasmuch as there was novalid promise of marriage in writing under section 21 of OrdinanceNo. 19 of 1907, no action would lie. It is not clear if the trialJudge accepted this argument, but he holds that P 1 is of no forceor avail in law, and he adds that no damages have been proved.He accordingly dismissed plaintiff's claim.
The agreement between the parties is one which was deliberatelyand voluntarily made between them. If then it has a “ physical andmoral possibility ", if, in other words, it is physically capable ofbeing carried out and is not contra legem aut bonos more$t it is avalid contract (ICotze’s Causa in the Roman and Roman-Dutch Lawof Contract, p. 39). It has been urged however for defendant onappeal first, that the agreement is merely a document givingdefendant’s consent to the marriage and nothing more. In faceof the terms of the promise it seems to me impossible to take thisview. Secondly it is urged that the agreement is essentially amarriage brokerage contract and is against public policy and sonot enforceable.
It is clear, from the terms of the agreement, that this is not anundertaking by a person to procure or bring about a marriage inconsideration of some monetary benefit to himself. What are
1988.
Dalton J.
De Silvav.
Juan Appu
( 428 )
1988. termed r‘ marriage brokerage contracts ” are aa a rule in that formDalton J. and are invalid in English law, as being deemed to be contrary- to
public policy. In this case a brother has bound himself under
De&itoa p6naity (whether it be liquidated or unliquidated damages) toJttanAppu bring about a marriage between his sister and a suitor. He appearsto have been the senior male member of the family alive andso more or less in loco parentis and I can certainly see nothing wrongor illegal or contrary to good morals for a brother in such a positionto influence his sister on the subject of marriage! The same remarksin my opinion are applicable to such a case as were used byMiddleton J. in Abdul Hameed v. Peer Cando 1 where a father hadcovenanted to give his daughter in marriage to the plaintiff withina stipulated time, and in case of default to pay a sum of Rs. 1,000to plaintiff by way of liquidated damages. In Fernando v.Fernando 2 also the Court held that such a. contract was not contrabonos mores. I am unable to agree that the agreement herewas otherwise than enforceable at law. The trial Judge was in myopinion wrong in his conclusion in respect of the first issue.
But even if it be assumed that the contract is a marriage brokeragecontract, Mr. Weeraratne has not satisfied me that it is contrary tothe public;policy of our law. He relies upon Livera v. Gonsalves 3where it is true Wood Renton C.J. held that such contracts areillegal, but it is quite clear that he based his conclusion upon the’ decision in King v. Grey* In following that decision he says wecannot do better than bring the law in Ceylon into line with that ofSouth Africa on this important question. Livera v. Gonsalves(supra) was decided in 1913. It is obvious from that judgmentthat at th%b date the question of the legality of marriage brokeragecontracts was considered as being still open. The argument thatsuch contracts have for a long period of time been regarded by theCourts as illegal, so far as I can ascertain, has no sure foundation.
The trial Judge, whose decision was reversed in Livera v. Gonsalves(supra), had held on the authority of Van der Keessel (Th. 482) andBynkershoek (Quaestiones Juris 'Privati, lib. 11., cap. 6) that such anagreement is not founded upon an immoral cause and that it couldbe enforced in an action at law. These authorities were neverconsidered in King v. Grey (supra). This has been pointed out byKotze (Van Leeuwen's Roman-Dutch Law, 2nd ed., vol. 11., p. 633).That learned authority expresses the view that what is stated byBynkershoek and laid down by the Supreme Court of Holland inthe case he cites is still the law in South Africa. De Villiers C.J.in King v. Grey (supra) followed the English law. The appellant inthat case was unfortunately not legally represented, whilst counselfor the respondent relied upon English law. The correctness of the
» 15 N. L. R. 91.* 4 N.L. R. 285.
* 17 N. L. R. 5.
24 S. O. (Juta) 554.
( 429 )
decision in this case has ulso been questioned by Lee in his Roman-198&
Dutch Law, p. 224, whilst it appears to. be contrary to the view of pJ.Pereira in his Laws of Ceylon, p. 563.De~8ih<$
Prom these authorities it would seem to me that there is nodoubt that under Roman-Dutch law a contract for marriage «/uan Appubrokerage is not contrary to public policy. It has been argued tha*the Common law of this Island is not the whole body of Roman-Dutch law, and Mr. Weeraratne has referred to decisions which support his contention, but he has failed in my opinion to show thatthe Roman-Dutch law in respect of these particular contracts at anyrate is not the Common law of the Island. The decision of theHouse of Lords in Janson v. Driefontein Consolidated Mines, Ltd.1shows that public policy is not a safe or trustworthy ground for legaldecision, and it shows further that it is no part of the functionsof a Court of law, on the ground of some notion of fancied policy orexpediency, to prevent a party from availing himself of an indisput-able principle of law, or to invent a new head of public policy.
In the words of Lord Halsbury certain things are contrary to publicpolicy because they have been either enacted or assumed by theCommon law to be unlawful, and not because a Judge or Courthave a right to declare that such and such things are in his or theiropinion contrary to public policy. ** It is the legislature which alonehas the power to decide on the policy or expediency of repealinglaws or suffering them to remain in force.1 *
The authorities to which I have referred set out the Common law,which was not the basis for the decision in Livera v. Gonsalves(supra). That Common law has not been repealed and it certainlyhas not been abrogated by disuse. It therefore governs this'contract, if it be a marriage brokerage contract, and declares it tobe neither contra legem nor contra bonos mores.
From the standpoint of local custom it may be added that itseems to be a common custom in Ceylon, both amongst Sinhaieseand Tamils, to use the good offices of others tor the purposes ofarranging marriages. I understand in a large number of cases thedaughter has little say in the choice of a husband, as is also thecase in various other parts of the world including Europe. That isin no way consistent with a due recognition of “ the freedom ofmarriage *
The question of damages remains.
On this point the trial Judge merely states the plaintiff has notproved that he has suffered any damage. It is urged on his behalfhowever that the sum of Rs. 3,000 mentioned in the document P 1is in the nature of liquidated damages, that is, assessing the damageswhich the parties contemplated the plaintiff might incur if defendantfailed to effect what he promised to do. The plaintiff says he will
1 (1902) A. C. 484.
( 480 )
1WS.
DjdWoN £
MSUw$
•»
Juan Appu
pay “either as a fluey compensation, or for dishonour” a sumof “ not lefes than Be: 3,000 ”* Gan it be said that here there is afixed and definite sum stated to be payable ? Is .it not open toplaintiff, if he has suffered damages which in money value can beexpressed in a greater sum than Rs, 3,000, to prove these damages ?It would appear from the terms of the agreement that the partieshad fixed upon the sum of Rs. 3,000 at least, as representing theloss, to plaintiff if defendant failed in bringing about the marriage.It is urged for him in this Court that the sum is immanisand Out of all proportion to the injury plaintiff sustained, but he madend.: attempt to 'show that, as he might have done, in the lower Court.There are no-.. circumstances before the Court, for instance, withregal'd to !the -status of the parties (although plaintiff and defendant’ssister *a£e stated to*-be- of the. same social position), that wouldassist one1 in saying; whether or not Rs. 3,000 is out of proportionto what plaintiff has lost,- and I am unable to say it is not a genuinepre-estimate- of plaintiff’s probable or possible interest in the dueperformance-of the marriage (see Wijewardene v, Noorbhai *). Itmay be argued however -that it cannot be more than a minimumfigure at which such interest can be pre-estimafced, but that will nothelp defendant as plaintiff relies upon the amount fixed in the agree-ment and does not seek" to obtain any larger sum.
For these reasons, I am of opinion the plaintiff was entitled tojudgment for the amount claimed. I would therefore allow theappeal, set aside the decree in the lower Court, and enter judgmentfor the plaintiff in the sum of Rs. 3,000 and costs. He is entitledto the costs of this appeal.
Appeal allowed. i
i28 N. L. H.,otp. 432.