Damages for Failure to Perform Promises of a Religious Nature?

I remember reading about an old case in first year contracts about a man whose horse lost a shoe while he was travelling to marry a rich heiress. The blacksmith he hired to replace the horsehoe did the work poorly and made the horse lame. Consequently, the man missed his wedding and the heiress married another person in his stead. The blacksmith as held liable for the loss of the marriage. At the time I read this story, I thought it was a very strange situation in which to involve the civil courts for relief.

Of course, since that time, courts have developed a more refined approach to the types of damages that may be sought and the types of obligations that are enforceable. For example, courts will no longer enforce a promise to marry someone because it is contrary to public policy to force marriage against a person’s will.

Still, there are cases that arise, even some that make it to the Supreme Court of Canada (“SCC”), which test the boundaries of justiciability.

This past week, the SCC released its decision in Bruker v Marcovitz, [2007] 3 SCR 607, a case which dealt with the issue of whether an unfulfilled promise to perform a religious act can give rise to damages. Earlier this year, Eric Baum provided an excellent overview of the facts and issues in this case so I will not dwell on the details. In short, during the course of a divorce settlement, a husband agreed to provide his wife with a get, a Jewish divorce which would allow her to remarry and bear legitimate children under the Jewish faith. Afterwards, he reneged on the deal and refused to provide her with the get for a period of 15 years.

In a split decision, the SCC held that this promise by the husband to provide his wife with a get is a valid agreement and upheld the trial judge’s award of damages. Essentially, the majority held that promises that contain a religious aspect may or may not be justiciable, depending on the specific facts of each case. In this case, the majority of the SCC looked to other values, such as gender equality and the social benefit of discouraging religious barriers to remarriage, in holding that this particular promise was justiciable and that the ex-husband’s failure to fulfill the agreement gave rise to damages.

In contrast, the dissenting minority took a more categorical approach in refusing to intervene in private disputes of a religious nature where there is no violation of a rule recognized in positive law. The dissent held that since there had been a civil divorce between the parties, there were no legal barriers for the ex-wife in remarrying and having legitimate children. Only her religious rights as a result of religious rules were infringed and this was not a matter that the courts should determine.

This is one of those cases where I feel that the SCC made the right decision, but it is difficult to put a finger on exactly why. There are good reason why the courts should not intervene in enforcing promises or obligations of religious nature. However, on the facts of this particular case, the religious aspects of the obligation do not really go to the core of the issue. As the majority notes, the decision of whether to grant a get is not a matter of personal conscience or religious belief, since it is a ritual that is permitted by the faith. This is a vindictive ex-husband using the shield of religious freedom to go back on an agreement he freely entered into in order to prevent his ex-wife from remarrying.

The situations in which the courts should consider obligations of a religious nature is clearly one must be taken with great care and sensitivity. While the majority attempts to reach the correct decision on the facts of this case, the decision may not provide enough guidance for lower courts to determine when such obligations become justiciable.