Case 1: promises of gifts

It does not matter if Gaston’s niece incurred expenses in the expectation that she would receive the money. Under French law there is no legal ground that enables the promisee to recover for reliance on a future benefit to be received under a contract, unless his reliance gives rise to liability in tort under art. 1382 of the Civil Code which allows recovery for harm (dommage) that is caused by the fault (faute) of another.1 It is not clear whether Gaston would be liable under art. 1382 for the ‘fault’ of not fulfilling a promise to make a gift, when the due formalities have not been respected. One can sometimes recover under this article for breaking off commercial negotiations.2 Nevertheless, that analogy does not seem to be a good one since the parties do not have the same interest in the gift becoming final. It could therefore be difficult for the beneficiary of the promise to claim that the promisor is at fault since only the beneficiary stands to gain and it may be wrong to force the promisor to be generous.

Nevertheless, it is just possible that an analogy could be drawn to the cases where the courts have awarded damages for the fault of creating a certain illusion in the mind of the promisee. An example is a unilateral contract where advertising has created an illusion in the mind of an offeree–consumer that the offeror will give him prize money and the offeror fails to do so. ‘Victims’ of the false illusion who have spent money in the belief that prize money will be paid have managed to recover on the basis of contract as well as tort.3 The critical question is whether one can truly compare a promise by a commercial party to a consumer with a promise between two individuals. In the former case, the repercussions

1Art. 1382 of the Civil Code states that ‘any human act whatsoever which causes harm to another creates an obligation in the person by whose fault it has occurred to make

compensation’.

2For a recent illustration of liability for breaking off commercial negotiations prior to the conclusion of a contract, see Com., 7 Jan. 1997; Com., 22 April 1997, D 1998, 45, note Chauvel. According to this author, since the breaking-off of contractual negotiations is somewhat inevitable in commercial contexts, the victim should only be indemnified when breaking them off can be characterized as a fault. No fault has been committed when the termination of negotiations was justifiable. Nor should the victim be indemnified when his own behaviour was unjustifiable because his reliance on the conclusion of the contract and his hasty expenditure in anticipation were not really reasonable. In this case, French law would explain the denial of recovery in terms of the

‘fault of the victim’.

3See the observations of J. Mestre, RTDCiv. 1996, 397–8. See also, for example, Civ. 1, 28 March 1995, confirming the analysis of the trial courts on the basis of a unilateral contract (engagement unilatéral). Liability has also been imposed in tort, for instance, when a mail-order company gave the beneficiary reason to believe that he had won an important sum of money when in fact he had only gained the right to participate in the lottery. The court awarded the total amount of the prize money offered as a lure on the ground that the victim’s ‘deception’ was equivalent to the hope of the gain on which he could have relied. Cour d’appel, Paris 25 ch., 27 Oct. 1995; Vie jur. 10 March 1996, 9.

26 the enforceabilit y of promises

are much wider and the potential harm caused to a number of victims is greater. It is clear that the decisions in the cases of prizes or prize money are greatly influenced by the fact that the promisors used misleading advertising. Intuitively, it is not clear that a French court would enforce a promise between two individuals by awarding damages for its breach either in full or in the amount of the promise.

In Case 1(b), where Gaston promised a large sum of money to his daughter Clara because she was about to marry, the answer is the same. If he does not observe the legal formalities he will not be bound. If he does, he and his heirs will be bound provided that there is no confusion between Clara’s capacity as heir and as beneficiary.

Nevertheless, it is possible for Gaston to make this type of gift by another means. He may create a dowry: that is, a gift made to a couple by a third party upon their marriage. This type of gift benefits from special rules provided that it is included in the spouses’ ante-nuptial settlement. It is not necessary to make the gift in a notarially authenticated document. Mentioning the dowry in the ante-nuptial settlement suffices since this agreement is itself a notarially authenticated document, and the beneficiary’s acceptance is not required (art. 1087).

It might be claimed that Gaston’s promise is a natural obligation (obli- gation naturelle). A promisor who voluntarily undertakes to perform a natural obligation is bound by his promise and is liable to the promisee if he fails to perform.4 A unilateral promise to perform converts the natural obligation into a civil one. Nevertheless, that rule does not apply here because the Code contains special provisions that govern parents’ gifts of money to their children upon marriage. Under art. 204 of the Civil Code, ‘a child does not have an action against his father or mother for a settlement upon marriage or otherwise’.

On the question whether a dowry is a natural obligation or not, case law is in conflict,5 although the discussion now appears to be obsolete, and the case law emanating from trial courts is of extremely limited value. It should be noted, however, that, in principle, a parent’s obligation to maintain his or her children6 ends when the child reaches the age of majority or marries. That is how the case law has interpreted art. 203 of the Civil

6Maintenance should be distinguished from the concept of settlement under art. 204 of the Civil Code. Civ. 2, 19 Oct. 1977: Gaz. Pal. 1978, 1, somm.

Code, which states that ‘spouses contract together, by the very act of marriage, an obligation to feed, maintain and bring up their children’.

The answer might be different if the gift were made subject to the condition subsequent that Clara gets married (condition subsequent mixte). In this case Gaston will not be bound until the condition is satisfied on the day of the marriage. That will also be the case if he gives the money in the form of a dowry.

In Case 1(c), in which Gaston promises to give a large sum of money to the United Nations Children’s Emergency Fund for famine relief, the same principles apply. Nevertheless, because gifts to legal persons are regarded with suspicion, further restrictions are imposed on such a beneficiary. Their capacity to benefit from a gift is limited depending on the form of the group and, in the case of a charity, whether it is recognized to be of public benefit. It may also be limited by the ‘principle of speciality’ which means that such groups must stay within the objects set out in the French equivalent of their articles of association.

John Dawson, in his book Gifts and Promises,7 cites some French cases in which courts enforced a promise of gift by applying the concept of a ‘moral equivalent’. These courts treated such a promise as an onerous bilateral contract (in the French sense of the word)8 because the act of the beneficiary compensated the promisor, for example, by giving him the satisfaction of hearing the church bell of his childhood toll again, or having an annual mass said for him. Nevertheless, this case law would not apply to Gaston’s promise here. In order to treat a gift as a bargain, the more recent case law requires evidence of a real economic exchange. The existence of any interest whatsoever on the part of the promisor no longer suffices. Whether there is such an exchange is a question of fact for the trial courts to decide and subjective and objective elements will be taken into consideration.9 In the present case, however, the objective element is absent. There is absolutely no indication that the UN charity has made a concession in return for the promise of the gift. It seems, therefore, that the promise of a gift would be treated as such. Consequently, failure to respect the formalities means that the promise is revocable and cannot be enforced.

9F. Terré and Y. Lequette, Droit civil, Les successions, Les libéralités, 3rd edn (1997), no. 250, p. 210; G. Marty and P. Raynaud, Droit civil, Les successions et les libéralitiés, no. 299, p. 238 f.; see also R. Le Guidec in Juris-Classeur civil, arts. 893–5, who suggests that the absence of a quid pro quo (contrepartie) means that the donor becomes poorer and the donee richer.