insists upon a requirement of mutual consideration as a further means of demonstrating seriousness of intent, this seems to add nothing to the law, and in fact hampers the adoption of obvious promissory solutions to some problems, problems which must instead seek other, less suitable, means of resolution.

The provisions of the DCFR sensibly do not require mutual consideration for a valid contract, stipulating instead two required elements: (i) an intention to enter into a binding legal relationship or to bring about some other legal effect, and (ii) a sufficient agreement.361 The intentional element in this provision reinforces the terms of the earlier Article II.-1:101(1), which provides that a ‘contract is an agreement which is intended to give rise to a binding legal relationship or to have some other legal effect’.362 The emphasis in these provisions upon intention as the unique constitutive mode of contracting underpins the adherence of the DCFR to a willbased approach to contract law: contracts are not constituted merely by any effect they might produce, such as the conferral of a benefit or the creation of detrimental reliance, or simply through consensus on proposed terms. Similarly, Article II-1:103 locates the force of a unilateral promise in the intention of the promisor to be legally bound.

The position proposed by the DCFR, insisting upon an intention to be bound rather than any requirement of mutual consideration as the determinant of seriousness of intent, is both desirable and practicable. As to its practicability, as the editors of the DCFR commented generally of European legal systems, those systems which do enforce unilateral promissory undertakings ‘do not in general encounter problems.’363

12.  Requirements of form: unwarranted restrictions on promising?

As a leading European legal academic has remarked, the modern trend is to informality, as least so far as the core areas of private law are concerned.364

361DCFR Art II.-4:101.

362It is noteworthy that the wording of this Article in the interim edition of the text conceived of as intention as merely one of the ways to create a contract: ‘A contract is an agreement which gives rise to, or is intended to give rise to, a binding legal relationship or which has, or is intended to have, some other legal effect.’ The revised wording confers upon the intention of the parties a unique constitutive role.

363DCFR, Full Edition, Comments to Art. II-I:103 (p. 133).

364Zimmermann, Law of Obligations, p. 86. Zimmermann’s view of a preference for ­formlessness that ‘its general intellectual background is one of superabundance and profusion of material, spinelessness and mental exhaustion’ is somewhat hard to grasp.

Even when specific form is required for the constitution of an obligation, ‘a tendency is often observable in the practice of the courts to water down such rules’.365 Examples of such watering down may be found in a number of systems.366

As a general statement, it is suggested that the fewer formalities stand in the way of the enforcement of seriously intended and clearly expressed promises, the more a system can be said to value promises and to treat them seriously. The contrary argument, that rules on formality are there to protect people against unforeseen consequences, and thus ensure that frivolous undertakings are not treated as serious promises, represents one form of legal paternalism. The field of formalities is thus a classic battleground between the positions of legal libertarianism and paternalism. It has, for instance, been said of German law that:

on the whole, in German law the rules about formality are meant to protect the parties by ensuring that they enter legal transactions only after serious consideration of the consequences of their acts.367

This view encapsulates a systemic belief that sometimes parties require to be protected from themselves, because promising can be a risky thing if done hurriedly or without proper contemplation of the consequences. This is a not uncommon view, and therefore unsurprisingly a number of transactions which are promissory in nature are deemed to require some formalities in German law (as well as other systems). Thus, the promise of a gift requires notarial recording,368 the guarantee of a surety requires writing,369 and a will made by a testator himself, rather than by declaration to a notary, requires to be in his handwriting and signed by him.370 Given the variety of different transactions which require adherence to some formality, it is evident that it is not just promises which are conceived of as giving rise to the risk of impetuous undertakings, though such danger is conceived of largely as affecting transactions which are

One could, by way of rejoinder, argue that a preference for giving force to all promises, regardless of form, rather reflects a profound respect for the moral force and worth of promises, such as is visible in the canon law’s attitude.

365Ibid., p. 86.

366For instance, in French law, the notarial requirement of Art. 1341 of the Code civil has been watered down by the doctrine of ‘commencement de preuvre par écrit’, by which the testimony of witnesses to an obligation is admitted, so long as there is a foundation of a written document; in Germany, the BGH has shown itself willing to enforce contracts for the sale of land which lack the form required by §311b BGB, if good faith so requires.

either unilateral in nature or which relate to a subject matter deemed of fundamental significance­ (such as land transfers).

Oddly enough, however, (at least from the perspective of a non-German lawyer), not all acts of a unilaterally binding nature enforced under the BGB require compliance with a formality: the issuing of public offers of reward do not, nor indeed, in general, do offers, even though the default rule is that offers are binding unless the power to revoke them is reserved. So a party making an offer without properly considering its position takes the risk of being unable to withdraw from the offer if it subsequently considers it to have been made foolishly. To a non-German lawyer, it is puzzling that some such instances of unilateral acts capable of binding a party do not require any particular formality, while others do. The answer doubtless lies in the view that, even though offers are binding, because they require some reciprocal act by the promisee to complete them, the consequences of foolish behaviour on the part of the offeror are not so grave as in those cases where the BGB prescribes formalities. German law is, moreover, not alone in stipulating different requirements for similar types of act: in Scotland, for instance, private unilateral promises must be in writing, but those given in a business context need not be.371 Again, a paternalistic concern for the private party envisaged as being perhaps unadvised provides the reason for the different treatment, though one might question whether business parties and private individuals are really in that different a position so far as the contemplation of their intended undertakings are concerned.

Failure to fulfil some of the formalities stipulated by legal systems can be cured by subsequent conduct. Thus, in German law, failure to comply with the formalities for the making of a gift will not invalidate the gift if the donor’s performance subsequently occurs.372 The same is true of an informally constituted obligation of surety: discharge of the surety’s duty cures the defect.373 The prolonged labours of a party on land the ownership of which it was promised has been held to cure the absence of a notarised contract of sale.374 These examples are doubtless best characterised in general as protecting the reasonable reliance of the promisee, rather than as bolstering promissory liability per se, given that they refer to circumstances where the conduct concerned follows on from the promise.375

371Requirements of Writing (Scotland) Act 1995, s. 1.

372§518(2). 373 §766 (sentence 3). 374 BGHZ 12, 286.

375However, at least in respect of cases pled under §311b(1), requiring notarial recording of contracts for the transfer of land, the German courts have even shown themselves willing to enforce performance in defective contracts which have remained at the executory

Comparisons may be drawn with the Common law of proprietary estoppel, or the Scottish provisions on statutory personal bar applicable to land transactions, in that each allows defective land contracts to be enforced in circumstances where reliance has been placed upon the validity of an informally constituted transaction. The DCFR does not go so far as to allow the cure of informalities by subsequent conduct: instead, it goes for the less far-reaching solution of allowing a party which has reasonably relied on the validity of the contract to claim its reliance losses from the other party, if the other party knew of such reliance and allowed it to continue.376

The willingness of legal systems to consider subsequent conduct of parties, as well as the judicial watering down of some rules, doubtless mitigates against perceived overly paternalistic effects of formalism. Nonetheless, the continued existence of formal requirements must necessarily amount, to some extent, to a subversion of party autonomy. Such formalistic paternalism is, of course, part of a wider culture of increasing control of private contractual arrangements. Such control is likely only to increase, as successive national and EU legislative acts concerning consumer contracts impose new duties upon businesses to ensure that many transactions are committed to a certain form. The general approach of the DCFR – that its requirements can be excluded or derogated from – does not apply in the case of ‘applicable mandatory rules’,377 requirements of form almost invariably falling under that heading (formal requirements for acts of donation being a prime example).378

Whether formal controls on promises are warranted, as the heading to this section of text asked, will inevitably depend upon one’s own position in relation to the debate concerning legal libertarianism versus paternalism. In an age where personal responsibility is being blunted by the overarching protection of the state, it is suggested that the preference should be for party autonomy, though such a suggestion will not find universal acquiescence. Wherever the balance is to lie, it was suggested in Chapter 3 that a revitalised will theory of contract can happily coexist with such formal requirements as may be considered necessary to prevent ill-considered liberality.

stage, by compelling sellers who have assured buyers that the formality requirements have been complied with, when they have not, to transfer the land to the buyer: see for instance: BGHZ 48, 396; BGH NJW 1972, 1189.

376 Art II.-1:106(2). 377 Art II.-1:106(1). 378 Art IV.H.-2:101.