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principle, a person who lists a house with a broker is unlikely to be able to withdraw without either giving him a chance to sell it or paying his expenses or a penalty. That is as one would expect if it is also important for the broker to incur expenses in reliance on the promise. When the listing is exclusive, a broker is particularly likely to do so since he is not afraid that the sale will be made by another broker.

IV. Epilogue

We found more order in the results that different legal systems reach than in the doctrines by which they do so. We will examine the results and then the doctrines.

A. The results

We did not find that the same results are always reached everywhere. We did find that, generally, these results reflect similar underlying concerns.

When we examined gifts and favours, we saw that promises that are intended to enrich the promisee at the promisor’s expense invariably required a formality. The acknowledged reason was to encourage deliberation. Favours that could be performed without expense generally did not. The problem instead was what to do when, because of the promise, either the promisor will incur an unexpected cost or the promisee will suffer an unexpected harm. A promise to loan or store property can no longer be performed costlessly. A promise to do a service was broken and the promisee will be worse off than before unless the promisor compensates him. Solutions ranged, as one might expect, between protecting the promisor and protecting the promisee.

When we examined promises to pay for benefits received pursuant to a now unenforceable contract, we saw that usually they were not treated like promises of gifts. Promises to pay debts that had become unenforceable because they were time-barred, discharged in bankruptcy, or incurred as a minor rarely required a formality, and when they did, the formality was rarely the one required for gifts. These are cases in which the promisor will be enriched at the promisee’s expense if the promise is not enforced. Moreover, the promise alleviates some of the concerns that led the law to bar enforcement of the original debt: concern that evidence has been lost or the debtor has changed his position with the passage of time; concern that the bankrupt should have a fresh start; concern that minors have bad judgment. The legal systems we examined were much

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less consistent in enforcing promises to pay for benefits that had been conferred absent a contract, such as a promise to pay a rescuer. In such a case, it is less clear that the promise should be interpreted as one of compensation for the service that has been rendered rather than as an act of generosity.

Again, most often, promises to pay more (or take less) for benefits already due under contract were not treated like gifts. Almost everywhere, they were enforceable absent duress. Most of them have become enforceable even in English and Irish law by making special exceptions to the doctrine of consideration (waiver, receipt of a ‘practical benefit’, promissory estoppel). These promises are made in a business context where the promisor is not motivated by a concern for the promisee’s welfare. They are treated, not as attempts to enrich the promisee at the promisor’s expense, but as revaluations of the performance due from the promisee. In one situation it was plausible to regard the promise as motivated by gratitude or generosity: the promise of money to an employee about to retire. Roughly half the legal systems examined would enforce that promise and half would not, which is as one might expect when the promise could either be a reappraisal of the value of his services or an act of generosity. In one situation it was not plausible to regard the promise in either way: the promise was made because the promisee threatened not to perform otherwise. In that case, all legal systems would refuse to enforce the promise on the grounds of duress if the party threatened would suffer immanent and serious harm. Reporters disagreed, however, whether the harm was immanent and serious in the hypothetical cases.

When the parties expressly agreed that one of them would not be bound, most of the legal systems would give relief in the two situations in which the uncommitted party could most easily enrich himself at the other party’s expense: the promise to sell whatever quantity is ordered at a fixed price, and the long-term option in an unstable market. Admittedly, English and Irish law go considerably further and strike down all agreements in which one side is not committed. Conversely, in the cases in which the one could change his mind without either harming the other or enriching himself at the other party’s expense, many legal systems found ways of allowing him to do so.

Not only are the underlying concerns similar, but one of them continually reappears: that one party be enriched at the other’s expense only when the promisor intended to do so with sufficient deliberation. That is a conclusion that would have appealed to the late scholastics and natural lawyers.

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B. The doctrines

While these results seem to reflect similar underlying concerns, the doctrinal structures were different. There was one structure in most civil law systems, another in Scotland, and still another in the common law systems.

To begin with, most civil law systems had preserved, with or without modifications, some old doctrines that were in place at the time of the late scholastics and natural lawyers: gifts of money and property require a special formality that cannot be performed without a legal professional; promises to loan or care for property or to do a service gratuitously are subject to special rules, often, to ensure that they remain costless; promises to pay compensation for benefits received are often enforceable without a formality. It is not surprising that these rules reflect a concern that neither party be enriched at the other’s expense except by a deliberate decision to do so. That was a concern of the late scholastics and the natural lawyers who either invented these rules or preserved them when so many other rules of Roman contract law were weeded out.

When these doctrines were not available, most civil law systems turned to one or more less concrete and rather general doctrines which, for the most part, were directly concerned with the fairness of a transaction. Which of these doctrines would be applied to a given problem often varied considerably from one system to the next. For example, to explain why promises to sell whatever quantity the other party ordered or to give him a long-term option might not be enforced, different civil law systems would apply doctrines of ‘abuse of right’, changed circumstances, good faith, ‘equitable criteria’, offence to ‘common decency’, lésion, frustration of the purpose of the original transaction (teoria de la base del negocio), or canons of interpretation. Only the doctrine of lésion is fairly specific.

Sometimes, moreover, general rules of this sort were not used to resolve a problem because a much more specific rule was available which had been framed for a particular situation. The content of this rule differed from one system to another. An example is the wide variety of detailed rules used to decide when promises to detectives or brokers could be revoked. These rules were intended to strike a fair balance between the interests of the promisor and promisee but, unlike the more general ones, they specify how this balance is to be struck.

In light of the account given earlier in this study, this structure should not be surprising. Historically, the civil law is the product, not only of Roman law, but of two systematic efforts to find principled justifications

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for its rules, one made in the sixteenth and seventeenth centuries, and one made in the nineteenth century. One idea that played a key role in the earlier of these attempts was the Aristotelian principle that it would violate commutative justice for one person to be enriched at another’s expense. As we have seen, the older doctrines reflect this principle. In the nineteenth century, an effort was made to explain as much of contract law as possible by the idea of will. As noted earlier, it was difficult for the will theories to explain what promises the law should and should not enforce. It would seem, according to the theory, that anything the parties willed should be enforceable. It was also hard for these theories to explain relief from an unfair contract. Supposedly, contract law should not concern itself with whether a transaction is fair or not but merely enforce the terms the parties have chosen. Even in the nineteenth century, however, the civil law did not enforce whatever promises the parties had made without regard to their fairness. The old doctrines were preserved even though their rationale became obscure. In the twentieth century, will theories fell from favour and courts were more explicitly concerned with fairness. Nevertheless, we have not seen another great rethinking of the principles behind the civil law, as happened in the sixteenth/seventeenth and nineteenth centuries. It is not surprising, then, that when problems of fairness arise that the old doctrines do not address, there are two alternatives: to have recourse to blurry doctrines that say little more than that a contract should be fair, or to turn the problem over to draftsmen who can frame particular rules to deal with a specific situation. So it will remain, perhaps, until the next time a systematic effort is made to bring theoretical coherence to private law.

Although we have spoken of Scotland as a civil law jurisdiction, in fact its doctrinal structure is much different, one might almost say sui generis. Scottish law resolves many of the problems we have discussed by reference to the rather simple rules of a statute, the Requirements of Writing (Scotland) Act 1995. As we have seen, the statute provides that a gratuitous promise must be in writing unless the promisee has relied upon it in a significant way or the promise was made in the ordinary course of business. This statute classifies together as ‘gratuitous’ types of transactions which other civil law systems treat differently. Yet, the statute is remarkably successful at reaching results that are sensible given the underlying concerns we have identified. Gifts of money and property are ‘gratuitous’ and so require a formality in Scotland as they do elsewhere. Favours that can be performed without cost are also ‘gratuitous’ and so Scots law requires a formality when most other civil law systems do not. But it may not matter

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much in practical terms because as long as the promise remains costless, the promisor is likely to perform. If it ceases to be costless, he is not bound (absent a formality, absent reliance), but some civil law systems would reach the same result by a special rule excusing him from performance. The promisee who relies is completely protected, but, as we have seen, some civil law systems give the promisee some protection although none of them to this extent. Finally, in Scots law, some promises that entail a cost to the promisor for which he receives nothing in return can also be ‘gratuitous’: for example, the promises in Case 11 to install better windows or waive the need for an architect’s certificate. Other civil law systems do not treat them as gifts which require a formality. Scots law achieves similar results by dispensing with the formality when a promise is made in the ordinary course of business. That is precisely the context in which a promise is unlikely to be made out of a concern for the promisee’s welfare and is more likely to represent a reassessment of the terms of exchange. The remaining problem is how to avoid enforcing an unfair promise in a business context, and that is met by the doctrine of duress (Case 9 if the harm were imminent), and by interpreting the contract to accord with good faith (Cases 8(b), 13(a), and possibly 15). In short, Scots law arrives with a few simple rules at a large number of results within the range that would be sensible in other civil law systems, but which they would produce with a large number of rules.

The advantages are a high degree of economy and simplicity and, perhaps, certainty in how the law will be applied. The disadvantage may be the loss of a certain amount of fine tuning. As we have seen, when Scots law protects either the promisor or promisee of a gratuitous favour, the protection is often more extreme than in other civil law systems; it will not enforce promises to pay for benefits conferred under contracts that have become unenforceable; it has fewer tools for scrutinizing the fairness of a promise that has been given in the course of business. We have had to wonder continually to what extent these results are reached because they are thought proper and to what extent the reason is merely that the rules are so general. One reason it is difficult to tell is that because the rules are so general, the underlying concerns to which they respond are less visible than in other civil law systems. Indeed, a Scots lawyer might claim that the concerns this study has identified are not those his law is addressing. And it must be conceded that the only reason for thinking they are is that otherwise Scots law would be reaching results that reflect these concerns surprisingly often.

The doctrinal structure of the common law systems is different again.

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It does not have the simplicity of Scots law. Unlike the civil law systems, it was not systematized in the sixteenth and seventeenth centuries, and so does not have doctrines based on ideas in favour at that time. Unlike them, it does not have a vague and general doctrine such as good faith which allows courts to consider directly whether a promise is fair. Nor are the problems we have examined resolved by special rules enacted for particular situations.

Instead, there is a doctrine of consideration which is stated generally and then made subject to a number of exceptions. A promise has consideration when it is made to induce the promisee to give up something in return. A promise to make a gift of money or property therefore lacks consideration, and consequently, as in other legal systems, it can be made binding only by using a special formality. Gifts to those about to be married, gratuitous bailments, promises to do services gratuitously, and promises to pay for benefits received in the past or already due under contract should all lack consideration. Yet, gifts to those about to marry have been enforced by way of exception. Gratuitous bailment is admitted to be an exceptional case although the rules applicable to it are unclear. The promise of a gratuitous service might support an action in tort even though tort actions are not usually based on promises. Promises to pay time-barred debts, debts discharged in bankruptcy, and debts incurred as a minor were all once enforceable by way of exception and the last of them still is. Promises to pay for a rescue are unenforceable unless the person in danger managed, before the rescue, to say or do something that would count as a ‘request’ and therefore constitute an ‘implied assumpsit’. But the leading scholar Atiyah thinks the English courts should make an exception in this case as American courts have done. Promises to pay more (or take less) for benefits already due under contract were enforced by recognizing three further exceptions: waiver, receipt of a ‘practical benefit’, and promissory estoppel.

There is a parallel to the state of the common law for much of its history. As we saw earlier, the formula for consideration which is now generally accepted was a nineteenth-century innovation. Before then, the requirement of consideration had been described in different ways. Judges did not decide whether there was consideration by applying a formula but by seeing if the facts of the case before them were similar to those in which consideration had been found to be present or absent in the past. The result was a law that was structured, not so much by rules or doctrines or principles, but by lines of cases kept distinct by close attention to their