Almost half the states allow a suit for breach of promise to marry.  The suit is an example of what is called a heart balm action.  The theory of this cause of action is that the party who backed out has breached a contract.  The three basic and traditional elements of a contract are offer, acceptance, and consideration.  The mutual promise to marry is the consideration for this contract.  (Consideration is something of value that the parties have exchanged.  It can be mutual promises or something tangible such as cash.)  In most states that allow this heart balm action, the contract to marry does not have to be in writing to be enforceable, i.e., the statute of frauds does not apply to marriage contracts.  Party who wins the suit, however, does not mean that the loser is forced to go through with the marriage!  Specific performance is not allowed.   In its place, the victim can obtain compensatory damages to cover out-of-pocket losses such as funds spent to prepare for the wedding.  If the defendant’s conduct has been particularly offensive, for instance, (intentionally causing the victim to be humiliated), punitive damages are possible. 

Courts have never been at ease in hearing cases alleging breach of promise to marry.  The emotions involving a refusal to marry are usually so personal, intense, and possibly bitter that courts finds it hard and difficult to properly settle it.  Furthermore there is a wrong notion that some alleged victims will use the threat of a suit (with its resulting publicity) to pressure a wealthy party into a generous settlement.  For such reasons, many statutes no longer allow suits for breach of promise to marry.  Statutes abolishing this cause of action are called heart balm statutes. 

Parties sometimes try to circumvent a heart balm statute by suing for fraud rather than for breach of contract.  Fraud also termed as misrepresentation is a tort cause of action with the following elements:

• the defendant makes a false statement of present fact
• the defendant knows the statement is false
• the defendant intends for the plaintiff to rely on the statement
• the plaintiff reasonably relies on the statement
• the plaintiff suffers harm due to the reliance

Suppose for example, that Sam lies to Lucy about wanting to marry her in order to seduce her to encourage her to sell her house to Sam’s friend at a reduced price.  After Lucy complies, he tells her that he does not want to marry her.  If Lucy lives in a state with a heart balm statute, can she sue him for the tort of fraud?  All states do not answer this question in the same way.  Some states will allow it.  Others say that the heart balm statute eliminates both the contract and the fraud cause of action when the foundation of the grievance is the failure to fulfill a promise to marry.