(dissenting). The plaintiff brought an action against the defendant on three theories: breach of contract, fraudulent misrepresentation and unjust enrichment. The defendant’s motion to strike was granted with respect to the second count *375only, the count alleging fraudulent misrepresentation. I cannot agree with my brethren that the trial court was in error in granting this motion to strike.
The language of General Statutes § 52-572b, the “Heart Balm Act,” does not, it is true, provide clear guidance about what forms of actions are brought within its prohibition of suits “from alienation of affections or from breach of a promise to marry.” Nonetheless, I do not believe that the statute’s purpose to ban vexatious litigation arising out of aborted plans to marry should be circumvented by a mere allegation that the defendant had no present intention that she (or he) would ever marry the plaintiff. It is entirely too easy to make such an allegation, and as Professor Clark points out, entirely too likely that triers of fact will fail to distinguish between breach of contract and intention not to perform a contract. Clark, The Law of Domestic Relations § 1.5, and esp. p. 17 (1968). In addition, I fear that a cause of action in deceit carries with it the capacity to generate claims for mental distress and punitive damages; see Brower v. Perkins, 135 Conn. 675, 680-81, 68 A.2d 146 (1949); that will only exacerbate the opportunity for blackmail that the Heart Balm Act was intended to prevent. For these reasons, recognizing the fact that the case law is divided, I would prefer to follow the cases such as Thibault v. Lalumiere, 318 Mass. 72, 75-76, 60 N.E.2d 349 (1945), that deny relief for suits based upon fraud. Clark, op. cit., p. 17.
Even if the second count of the plaintiff’s complaint is struck, as I believe it should be, the plaintiff is far from remediless. Since the plaintiff would still be able to proceed in his count for unjust enrichment, the defendant will not be able to retain money *376or property obtained through “trickery, cunning and duplicitous dealing,” as the Pavlicic court feared. Pavlicic v. Vogtsberger, 390 Pa. 502, 508, 136 A.2d 127 (1957). The plaintiff is also entitled, regardless of our holding on count two, to recover property given on condition of marriage, just as any plaintiff could recover any other gift given on condition not fulfilled. That is the import of Brady v. Anderson, 110 Conn. 432, 438, 148 A. 365 (1930), and the holding of the majority of the American cases reported in Clark, The Law of Domestic Relations § 1.6 (1968), and annotation, “Rights in Respect of Engagement and Courtship Presents when Marriage Does not Ensue,” 46 A.L.R.3d 578-611 (1972).
I would find no error.
In this opinion Cotter, C. J., concurred.