The case of the day is Johnson v. Settino (Mass. 2024). I love this case. Johnson and Settino began dating in 2016, and in 2017 they were engaged to be married. Johnson gave Settino a $70,000 engagement ring. That is quite some ring. To make a long story short, Johnson broke off the engagement but Settino kept the ring. Johnson sued.

What I love about the case is that it harkens back to the old-fashioned law of marriage, which was much more businesslike that our current arrangements. Marriage could be contracted either by an exchange of present-tense words indicating a present intention to be marriage, or by future-tense words indicating an agreement to marry in the future, followed either by an exchange of present-tense words or by consummation. If one partner breached a contract to marry, the other could maintain an action for breach of the contract. As Maitland writes, the law led to much litigation, since “of all people in the world, lovers are the least likely to distinguish precisely between the present and future tenses.” No witnesses and no clergymen were necessary, even though a marriage made in private was irregular.

I’m going to quote myself quoting the wonderful writer Hilary Mantel, who had a scene about this in her novel, Wolf Hall. Cardinal Wolsey is dressing down Sir Thomas Boleyn, whose daughter Anne (future wife of Henry the Eighth) was supposed to marry into a drab Irish family, the Butlers, but instead had had a fling with Harry Percy, the heir of one of the most important noblemen in the land. Wolsey suspects that Anne is “not enticed by the prospect of Kilkenny Castle and its frugal amenities, nor by the kind of social life that will be available to her when, on special occasions, she hacks on the poor dirt roads to Dublin.” “The difficulty is,” Boleyn says, “I think that Harry Percy and my daughter, they may have gone a little far in the matter.”

“What? You mean we are speaking of a haystack and a warm night?”

From the shadows [Cromwell] watches; he thinks Boleyn is the closest, smoothest man he has ever seen.

“From what they tell me, they have pledged themselves before witnesses. How can it be undone, then?”

The cardinal smashes his fist on the table. “I’ll tell you how. I shall get his father down from the borders, and if the prodigal defies him, he will be tossed out of his heirdom on his prodigal snout. The earl has other sons, and better. And if you don’t want the Butler marriage called off, and your lady daughter shriveling unmarriageable down in Sussex and costing you bed and board for the rest of her life, you will forget any talk of pledges, and witnesses—who are they, these witnesses? I know those kinds of witnesses who never show their faces when I send for them. So never let me hear it. Pledges. Witnesses. Contracts. God in Heaven!”

In the early 20^th century, American states enacted “heart balm” statutes, which abolished the action for breach of a contract to marry. Massachusetts’ statute provides: “Breach of contract to marry shall not constitute an injury or wrong recognized by law, and no action, suit, or proceeding shall be maintained therefor.” But if a man (it was always a man back then) could not sue a woman who breached a promise to marry, could he recover the engagement ring? For you might think that the engagement ring was the consideration for the promise, in which case the statute would seem to bar an action for breach of contract to recover it.

Not so fast. In De Cicco v. Barker (Mass. 1959), the court held that the ring was not consideration for the contract but was instead a conditional gift. Conditional gifts aren’t too common in everyday life, but they are not unheard of, especially in the law of real property and in charitable gifts. Anyway, the court held that the ring was a conditional gift, and thus that the man should get the ring back if the engagement were broken, but with a twist: he only got the ring back if the engagement ended “without fault of the donor.” This was fertile ground for lawsuits galore.

In today’s decision, the court held that the donor is entitled to the ring back, regardless of fault. That, apparently, is the trend in the law in other jurisdictions. The court recognized the difficulty of figuring out who is at fault in such situations, and it noted that in modern relationships, the engagement period is a time “to test the permanency of the couple’s wish to marry,” which is at odds with trying to assign fault to a break-up. One aspect of the analysis fell a little flat for me. The court analogized the change in the law to the legislature’s creation of irretrievable breakdown as a no-fault ground for divorce. There is an obvious similarity, but I think the two cases are different in an important way. In divorce law, the problem (as I understand it) was that spouses who wanted to divorce without cause under the old law had to bring a collusive action where one spouse falsely accused the other of some misdeed. In this case, there’s no reason to expect that lawsuits that arose under the old law were collusive.

There was no question in the case about what law governed, but to give the case a little Letters Blogatory spin, you can no doubt imagine questions about which law governs. Is it the law of the domicile? The law of the place where the engagement occurred and the ring was given? The law of the place where the engagement was broken?