Exercise 3 Analyse the Judgement of McCardie J in Cohen v Sellar

Exercise 3 Analyse the judgement of McCardie J in Cohen v Sellar [1926] 1 KB 536 at 546 giving the following information. 1. A brief statement of the material facts 2. The procedural history and issues to be decided 3. The passage(s) in the judgement: (a) Which could be argued to be ratio decidendi; or (b) Which could be argued to be obiter dicta. 1) Plaintiff female, defendant male. Agreement between the two to marry. Engagement ring bought for the plaintiff plaintiff by the defendant, defendant, with no express condition. condition. Given and received received as an engagemen engagementt ring in contemplat contemplation ion of marriage. marriage. Differenc Differences es arose between the plaintiff plaintiff and the defendant defendant Reconciliation Reconciliation attempted, but none was achieved Defendant and plaintiff parted company, at the refusal to marry from the defendant Plaintiff sued defendant for damages and succeeded Action bought by defendant for recovery of  the engagement ring. 2) Plaintiff sued defendant for damages which ended in High Court Defendant bought action to recover the engagement ring in County Court County Court decided to await decision from High Court action County Court action was removed to the High Court and was made as a counterclaim Plaintiff awarded damages Decision to be made was who gets the ring? 3) Obiter dicta underlined, ratios decidendi in bold. This I hold to be the correct legal view. If a woman who has received a ring refuses to fulful the conditions of the gift she must return it. So, on the other hand, I think that if the mas has, without a recognized legal  justification, refused to carry out his promise of marriage, he cannot demand the return of the ring. By the slow growth of decision the promise of marriage is today fixed with many of the legal characteristics of a commercial bargain. It is governed largely by the principles of law applicable to ordinary contracts. The conditions which attached to a gift made in contemplation of marriage must be viewed in relation to the incidents which flow from the engagement itself. ‘Reliance cannot be placed on a self-induced frustration’. The like rule will, I think, apply to a matrimonial adventure also. A like result to that I have already stated will follow if an engagement ring be regarded as a pledge or deposit for the fulfilment of a contract. A person who wrongly refuses to carry out a bargain wil lose his deposit. If the engagement to marry be dissolved by mutual consent, then in the absence of agreement to the contrary, the engagement ring must, I think, be returned by each party to the other. This seems clear on principle. If the marriage does not take place either through the death of, or through a disability recognized by law on the part of, the person giving the ring or other conditional gift, then I take the view that in such case the condition is to be implied that the gift shall be returned. For although, as I have said, such a gift cannot be dissociated from the engagement to marry, yet I think that in the circumstances of bethrothal gifts there should be no application of the operation of such decisions as Krell v Henry [1903] 2 KB 740 and Chandler v Webster [1904] 1 KB 493. If the marriage actually takes place then the engagement ring or like gift will, in the absence of express agreement to the contrary, become, I infer, the absolute property of the recipient, and that propert will not, I presume, be divested by subsequent divorce. The judgement I have given does not, of course, touch gifts which, as in Lockyer v Simpson Mosely 298, are absolute and free from condition. It touched conditional gifts only. But the matter was not left to them for decision and their view was only a suggestion. They were not cognizant of the points involved in the dispute as to the ring. In any event it would have been right that the plaintiff should keep possession of the ring so that she might be able to take it in execution for the damages and costs awarded in her favour against the defendant. B) A distinguished case is used where the earlier case in not necessarily doubted, but where some essential differenc differencee (either (either on the facts or in the law) between between it and the annotated annotated case is pointed pointed out.1 The case distiguished was Jacobs v Davis [1917] 2 KB 532. The essential difference is that in this case the ‘lady broke off the engagement’. C) McCardie J thought that the conclusions he reached were ‘borne out by the

general body of opinion. The apparent dictum to the contrary in Oldenburgh’s Case Freeman’s KB 213; 2 Mod 140, cannot be relied on at the present day’. The Jacobs v Davis case was a way to justify his decision in which he stated: “The case was reasonably clear in the inference that if the man had broken off the promise he could not get back the ring.’. He, therefore, would have no issues with having councel argue for the defendant (in the counterclaim) with some plausibility that the case should be governed by this case, so as to justify his opinion. D) The ratios of the cases Jacobs v Davis and Cohen v Sellar apply to any case of  a person giving another person an engagement gift. The two cases were, at the time, only concerned with men giving engagement rings to women, because in the judge’s experience, that’s the only way it happened In this light, she would be successful in suing for its return using both of these cases as precedent. The consequences to the ratio of Cohen v Sellar are that it must be seen in a gender neutral light, as a women giving a man an engagement gift, is a possibility which would probably be in a judge of todays experience.

If a woman who has received a ring refuses to fulful the conditions of the gift she must return it. If the engagement to marry be dissolved by mutual consent, then in the absence of agreement to the contrary, the engagement ring must, I think, be returned by each party to the other. This seems clear on principle. If the marriage does not take place either through the death of, or through a disability recognized by law on the part of, the person giving the ring or other conditional gift, then I take the view that in such case the condition is to be implied that the gift shall be returned. For although, as I have said, such a gift cannot be dissociated from the engagement to marry, yet I think that in the circumstances of bethrothal gifts there should be no application of the operation of such decisions as Krell v Henry [1903] 2 KB 740 and Chandler v Webster [1904] 1 KB 493. If the marriage actually takes place then the engagement ring or like gift will, in the absence of express agreement to the contrary, become, I infer, the absolute property of the recipient, and that propert will not, I presume, be divested by subsequent divorce. The judgement I have given does not, of course, touch gifts which, as in Lockyer v Simpson Mosely 298, are absolute and free from condition. It touched conditional gifts only. But the matter was not left to them for decision and their view was only a suggestion. They were not cognizant of the points involved in the dispute as to the ring. In any event it would have been right that the plaintiff should keep possession of the ring so that she might be able to take it in execution for the damages and costs awarded in her favour against the defendant. If the engagement to marry be dissolved by mutual consent, then in the absence of agreement to the contrary, the engagement ring must, I think, be returned by each party to the other. This seems clear on principle. If the marriage does not take place either through the death of, or through a disability recognized by law on the part of, the person giving the ring or other conditional gift, then I take the view that in such case the condition is to be implied that the gift shall be returned. For although, as I have said, such a gift cannot be dissociated from the engagement to marry, yet I think that in the circumstances of bethrothal gifts there should be no application of the operation of such decisions as Krell v Henry [1903] 2 KB 740 and Chandler v Webster [1904] 1 KB 493. If the marriage actually takes place then the engagement ring or like gift will, in the absence of express agreement to the contrary, become, I infer, the absolute property of the recipient, and that propert will not, I presume, be divested by subsequent divorce.