OLSEN v STANDALOFT 1983 (1) ZLR 67 (S)

Flynote

Contract — marriage brokage agreement — public policy — whether such contracts enforceable.

Headnote

An agreement to introduce men and women, or one man and one woman, to each other with a view to marriage cannot for itself be contrary to public policy. The only basis for finding it to be so is that because of the introduction of a monetary reward such a contract has a sufficient tendency adversely to affect the public good. The mere introduction of persons for reward with a view to marriage does not in itself lead to reckless and unsuitable marriages: that is no more likely than that a couple might be inclined to live together out of wedlock to avoid paying the fee.

Furthermore, the very fact that marriage itself is hedged about with necessary preliminary requirements and solemnities virtually nullifies any tendency to recklessness.

In general, the objection to this type of contract, as shown in the English and South African cases, has been an emotional and sentimental one: marriages should be made in heaven, uncontaminated by any kind of monetary consideration; but this is not a consideration of public policy. The doctrine of public policy should only be invoked in clear cases in which the harm to the public is substantially incontestable. The encouragement of marriage is, on this basis, in accordance with public policy. In modern society it is often difficult for people of similar tastes and outlooks to meet one another; there is nothing contrary to public policy in putting such people in touch with each other even though a fee is charged. It is far better that this should be done openly with a view to the possibility of marriage rather than of friendship, as more permanent associations are likely to be encouraged.