For this ring, I thee sue 

When is a ring a gift — and when is it a historical hot potato? That’s the question currently before the Massachusetts Supreme Judicial Court as it considers a lawsuit in which a man, Bruce Johnson, is suing his ex-fiancée, Caroline Settino, to reclaim the $70,000 Tiffany engagement ring he gave her in 2017. 

The engagement fell apart when he accused her of involvement with another man, an accusation a Plymouth Superior Court judge ruled to be false. 

However, because of a 1959 court case, DeCicco v. Barker, which ruled that the giver of an engagement ring is entitled to have it returned if the engagement is “terminated without the fault of the donor,” the case is raising all sorts of legal issues.

Rebecca Tushnet, the Frank Stanton Professor of the First Amendment at Harvard Law School, has written about such disputes (in “Rules of Engagement”). The legal scholar shared her insights into the history — and the possible future — of the “engagement ring” law. This interview was edited for length and clarity.

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How did we get into such a tangled mess?

Way back when, 150 or 100 years ago, there were these torts called “heart-balm torts” that covered breach of promise to marry, alienation of affections, criminal conversation [sex with a married woman], and seduction. Basically, the assumption was that if you got engaged, you were probably engaged in sexual activity, and the “breach of promise to marry” claim compensated a woman for her presumably lost virginity when a man broke an engagement. But, even after states abolished the breach-of-promise tort, the ring was something the woman could rely on.

So an engagement ring was compensation for a woman?

It’s a good reminder that people used to think very differently about marriage and the roles of women and men. Marriage was basically a woman’s only path toward financial security, and so there were some concerns about protecting women who were denied that wrongfully. It’s a leftover from a time when our whole economic system was different, our whole social system was different.

But the 1959 ruling says that a ring should be returned if the engagement is “terminated without the fault of the donor.” What happened?

Basically, reformers became convinced that women were abusing these torts to extort money from men who hadn’t actually promised to marry them. So a bunch of states abolished the heart-balm torts, so women couldn’t sue men for damages from a broken engagement, and then men started suing women to get back engagement gifts. 

Courts initially allowed those claims when they saw the donees — women — as gold-diggers, so they said that engagement rings should be returned when women weren’t justified in breaking an engagement. 

Courts initially allowed those claims when they saw the donees — women — as gold-diggers, so they said that engagement rings should be returned when women weren’t justified in breaking an engagement. 

Then in 1975, you see no-fault divorce in Massachusetts. If ending a marriage is not a matter of one party or the other doing something wrong, it’s hard to say that breaking an engagement can involve “fault.” 

But Massachusetts is one of the states that has older cases relying on the idea of fault in breaking an engagement. And it’s the combination of those things that leads to this weird little leftover rule just for the engagement ring.

Is the giving of an engagement ring a contract?

Basically, contracts have to have “consideration” — something of value — on both sides. Where there’s a contract, there are two parties, each promising something to each other: “I mow your lawn; you give me 20 bucks.”

But the way courts thought about it, when heart-balm torts were abolished, the legislature was saying that, for purposes of legal analysis, a promise to marry was not a thing of value, so when the heart-balm torts were eliminated, in most states, engagement couldn’t be a contract.  

Instead, courts turned to the concept of gifts and gift law. An engagement ring could still be what they called a conditional gift, but many states made up a special rule for it. 

What is an example of a conditional gift?

If you have someone who says to their kid, “I’ll give you a car, if you go to law school,” you can’t change your mind about that and get the car back as long as the donee remains willing to perform. It’s just a gift.

With an engagement ring, many states adopted the idea that the ring is a conditional gift conditioned on marriage actually happening, regardless of willingness to perform.

With an engagement ring, many states adopted the idea that the ring is a conditional gift conditioned on marriage actually happening, regardless of willingness to perform.

So the no-fault rule for the engagement ring that many states made up was it doesn’t matter who broke the engagement. It doesn’t matter if the donee was willing to perform. She still has to give back the ring.

What happens next?

The question is whether Massachusetts should keep this fault-based rule of law or do something else. Most states have decided that it’s not wrong to break off an engagement with someone.

Most courts that got rid of the fault rule nonetheless adopted a rule that the ring always goes back. And the problem with that is it’s basically based on some pretty sexist background assumptions about women.

So the question is: What should the modern judicial system do? And there are really two possibilities for a no-fault rule. One is it always goes back, and one is it never goes back. And they will probably be debating whether they should continue the fault rule or replace it with their choice of no-fault rule.

State courts are supposed to develop the common law in light of evolving social and economic realities. So I think it’s unlikely that they will embrace a rule based on sexism, but they could. It seems more likely to me that they will do something no-fault.