The "conditional gift theory" is currently the majority viewpoint, because that is the theory expounded in the Restatement of Restitutions.
An interesting relatively recent ruling on the "conditional gift" theory is Marshall v. Cassano; 2001 NY Slip Op. 40320U. This is what I would call a "conditional gift given in pari delicto," i.e. the plaintiff gave the gift in contemplation of marriage while he was still married; and the defendant knew he was married.
(Under a Contracts theory, it would have been an "illegal contract," to wit, "Contracts" illegal; which of course means "contrary to public policy," not necessarily "you are going to jail.")
Under the above case of what I would call, "conditional gift/in pari delicto," the fiancee' keeps the ring. In Contracts (in pari delicto), the judge would probably return the parties to where they were before the contract was formed, which I would assume means the groom gets the ring back, and the fiancee' can accept new proposals.
Many jurisdictions use the objective contract theory--but some courts are reluctant, because what constitutes a "breach of the terms" of the engagement? E.g., is a rowdy bachelor party a "breach"?
One last theory that would be the clear minority opinion but I believe is still in use would be the seisin/"transfer of title" theory.
In this theory, which was developed in ancient Anglo-Saxon law, the bride is sort of "one step above chattel." The groom is asking for "transfer of title," from I guess her father.
In a similar way that one would offer, say, a lump of dirt and a twig for land, the groom is offering the ring as a symbol.
Ironically, this system would favor the bride, because she keeps the ring if the "title doesn't transfer" for whatever reason (transfer of title meaning "marriage")--similar to a land transfer not closing, and you don't have to give the lump and the twig back.
Yes this case involves quite a number of legal nuances that complicate the decision for the court and appellant’s council.
I belive that your analysis does in fact deal more with the issue at hand and what this case should turn on then what was represented by the majority decision of the court. The case should turn on whether an engagement ring falls under contract or property law. I believe that appelate's council was aware of this but his only recourse, under Montana law, was to attempt to argue under unjust enrichment under MCA 27-1-602 which a was futile effort at best. This is what the court based its decision on along with the gender bias argument which seems to come out of left field.
Your point:
Many jurisdictions use the objective contract theory--but some courts are reluctant, because what constitutes a "breach of the terms" of the engagement? E.g., is a rowdy bachelor party a "breach"?
I would find it applicable, to contract law if at the end of the rowdy bachelor party the recipient of the engagement ring, receiver of the transfer, believes that the ring is given on said condition then a breach is evident again going back to the issue, is the giving of an engagement ring a gift or does it fall under the conditional gift theory. The court never addresses this in their opinion and seems apprehensive to do so. Very interesting case.
This is what i wrote on another board.
"if we look at the argument present by appellant’s counsel,
he should have attempted to prove that the
engagement ring was never a gift and hence can not be
construed as such and is not applicable to any gift law.
Now by firmly establishing that the engagement ring was
never intended as a gift the appellate counsel can refute
any type of gift legal analysis. So he would have to
argue in terms of property law or more specifically a
contract law case.
He has 2 major problems with this
1. MCA 27-1-602 which states: all causes of action for
breach of contract to marry are herby abolished...with
the exception of unjust enrichment which is his
argument.
2. By stating take the car, horse, dog ring Albinger
fails to put a contractual symbolism on the ring and
hence he fails to negate any elements of what is
considered a gift in black letter law. (a) competency
of the donor to understand the nature of his act; (b)
voluntary intent on the part of the donor to make a
gift. (c) delivery, either actual or symbolic, acceptance actual
or imputed, complete divestment of all control by the donor."
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