Well, this is a slight interruption in my examination of heartbalm actions, but one question that is raised when an engagement is broken off is: who gets to keep the ring?

Historically, engagement rings were a formal sign of the betrothal, a sign of the formal exchange of an offer to marry and its acceptance. It’s also a wonderful example of ‘hidden law’, where an integral, private part of human interaction also has a legal substratem. Indeed, historically even the word “engagement” had a contractual element, as it also means a promise or agreement, usually in the context of a limited-time term of employment–indeed, I am reminded that written contracts between masters and servants in 19th century Montreal were often referred to as “engagements” in both French and English. Engagements are therefore a vivid reminder of the tension that exists between the law on the one hand, and these intimate relationships on the other. Ifi I give someone a ring, it is a gift, is it not? Is it somehow different if I present it to my lover as a sign that I have proposed marriage, and they have accepted? After all, when a relationship fails, we customarily keep whatever gifts we received from our ex-partner– or at least, we feel entitled to do so.

And therein lies the rub: the law might say one thing, and the ‘informal law’ or custom might say another. If the fiancée dies before the wedding, we would quite rightly think the grieving spouse-to-be should get it back. This, of course, means that we are treating it as something different than a usual gift, as otherwise it would just pass to the heirs of the deceased, which might very well not be the same as a the spouse-to-be. By way of another example, if the partner offering the ring cheats on the other before the wedding, shouldn’t the aggrieved partner get to keep it, assuming she or he wants to? Most of us would probably say yes. This again seems to suggest that something other than traditional legal concepts apply.

But let’s say my fiancée breaks off the engagement, for whatever reason: should she have to return the ring to me? This last scenario is perhaps the clearest example of the tension between law and custom. Custom typically suggests that the answer has to do with who has broken off the engagement. If it is the woman, typically it is expected that she would at least offer to return it. If it is the man, typically he would be expected to not make a claim on it. In many cases, the ring’s bearer might very well have no interest in holding onto something that would be a painful reminder of a relationship-turned-sour (but whether they would want to sell it is another question). The Emily Post Institute says that etiquette dictates that the bride-t0-be should always return the ring regardless of circumstances. Personally, I would side with the Emily Post Institute, but believe that many people would follow an ‘at fault’ rule– the person who is not at fault should get to keep the ring. Again, these questions seem to suggest that in general we want to treat the nature of this gift as somewhat different than a typical one.

In a court of law, however, etiquette does not reign (especially true if you consider the behavior of many of the lawyers you see there!). It may not surprise anyone if I say that “the law” is hardly unanimous on this issue–after all, the law isn’t a hegomonic thing that is everywhere the same. In 1999 Pennsylvania ruled in Lindh v. Surman that the ring was a gift that was predicated on the act of marriage taking place. If the marriage does not happen, the recipient has to return the ring. Inherent in this ruling was the idea that if couples in that fair state could have no-fault divorces, there should also be a no fault regimen in place for broken engagements, and that an engagement ring is a “conditional gift” (e.g., a gift conditioned on an act taking place, namely a wedding between the parties). Seems simple enough, but does it raise an equity issue? Some courts have ruled that the aggrieved party should be the one deciding what to do with the ring. Other courts, in contrast, have ruled that the ring is an absolute gift just like any other, rather than a conditional gift, and need not be returned. A more common rule appears to be that the purchaser will be deemed to retain ownership of the ring should the wedding be called off, a rule that the current NY case of Adler v. Friedman will probably reflect.

Just another good example of how law has a difficult time grappling with affairs of the heart! So, what do you think: who should be the Lord or Lady of the Rings?