28 the enforceabilit y of promises

In Case 1(d), in which Gaston promises a sum of money to a waitress, once again he will be bound only if he executes a notarially authenticated document. Nevertheless, even if that formality were observed, the gift could be void as against public policy (cause immorale) (art. 1133). French judges frequently distinguish according to the different purposes the transaction might serve. If the donor and beneficiary cohabit and the gift is intended to start up or maintain the relationship, then the gift will be annulled. If, on the contrary, the gift is made when the couple are splitting up on account of a duty in conscience (devoir de conscience) or a natural obligation (obligation naturelle) to compensate for harm that has been done, it will be valid.10

Although we have stressed the importance of the legal form to render a promise of a gift enforceable, it may nevertheless be helpful to point out an important difference between French law and English law. Although traditionally, in English law, the formality of a sealed instrument is sufficient to make a gift enforceable, under French law the form does not dispense with the other conditions requisite for the validity of a contract (art. 1108). The judge must satisfy himself that the normal requirements are met as to capacity, freely given consent, subject matter (objet), and, above all, the reason for the promise (cause). In the gift to Clara, for example, there would be a mistake as to the cause, and the gift would be annulled, if Clara turned out not to be his daughter, or, according to a more objective theory of the cause, if he did not have the intention required to make a gift, that is, the wish to prefer another to oneself. English law and French law seem to respect legal form for different reasons. In English law, the form is a substitute for consideration and, therefore, a control which cannot be exercised with regard to gifts. Under French law, it is only a formal device, established for the purposes of protection of the donor, his family and third parties since it is considered dangerous to deprive oneself of wealth gratuitously by making a gift.

belgium

This first case involves a gift of a corporeal movable (bien meuble corporel): a large sum of money. Belgian law has strict rules as to the enforceability of donations (regulated by arts. 893 f. of the Civil Code).11 If Gaston’s prom-

10For an example, see Civ. 1, 6 Oct. 1959, D 1960.

11These rules reflect the general hostility of the drafters of the Code towards donations, which, unlike onerous transactions (transactions à titre onéreux), do nothing to favour commercial transactions and represent a potential danger for the donor and his family

obligation’ because the waitress provided Gaston with gratuitous services, for example, by assisting him in his old age by doing his shopping, laundry, cleaning, and the like so that he would have a legitimate reason for gratitude (see Case 10(b)).24

We have seen that Cases 1(a) and 1(d) could be donations governed by arts. 893 f. and that Case 1(c) almost certainly is. Very likely, they would be unenforceable under these articles. These cases concern promises to make gifts. According to art. 894 of the Civil Code, however, a donation is an act by which the donor, at the present time, irrevocably divests himself of the thing given.25 More precisely, art. 894 contains two rules governing the validity of a donation: the donor’s dispossession of the thing given must be immediate,26 and it must be irrevocable.27 Accordingly, a mere promise to make a donation, even made before a notary,28 has no legal effect.29

Furthermore, under art. 932, no donation is valid until it has been expressly30 accepted by the donee.31 This rule treats the offer or the promise of donation differently from how promises or offers are usually treated. The law normally recognizes the binding force of an offer on the theory that a unilateral declaration of will has binding force.32 It also

24On gifts made in consideration of services rendered (donations rémunératoires) see generally de Wilde d’Estmael, Répertoire notarial no. 27.

25Article 894 of the Civil Code: ‘La donation . . . est un acte par lequel le donateur se dépouille actuellement et irrévocablement de la chose donnée . . .’

26Immediate dispossession does not mean immediate delivery. Delivery can take place later (except in the case of a don manuel, described below) but the transfer of the right to the thing must be immediate. Therefore the mere promise to donate does not comply with the requirement of immediate dispossession. De Wilde d’Estmael, Répertoire notarial nos. 19–20.

27The requirement of irrevocability means that the donor cannot make the donation dependent upon a provision the direct or indirect effect of which would be to render the donation ineffective or to permit the donor to reconsider. Ibid. no. 11.

28That is the formality described by arts. 931, 932, and 1339 of the Civil Code.

29Raucent, Les libéralités no. 177; de Wilde d’Estmael, Répertoire notarial nos. 8, 20.

30The requirement of an express acceptance means that a tacit acceptance will not be deemed sufficient. There must be a formal acceptance by the donee which means that his mere signature is not sufficient. De Wilde d’Estmael, Répertoire notarial no. 152.

31Article 932 of the Civil Code: ‘A donation between living persons will not bind the donor and will not produce any effect until the day of its acceptance in express terms.’

32Several decisions of the Cour de cassation have recognized the binding force of an obligation undertaken by unilateral declaration of will. On the basis of this theory, the Cour de cassation has said that an offer may have binding force. Cass., 9 May 1980 (two decisions), Pas., 1980, I, 1127. For a recent overview of the extent to which this theory is accepted, see L. Simont, Les obligations en droit français et en droit belge (1994). See also Case 14.

32 the enforceabilit y of promises

recognizes that sometimes promises to make a contract may be binding.33 In contrast, under art. 932 of the Civil Code, neither the offer nor the promise of donation has any binding force during the promisor’s life or after his death.34

In addition, a donation must be evidenced by a solemn notarial act (arts. 931, 932, and 1339 of the Civil Code).35 A donation made without this formality is absolutely void (nullité absolue).36 Nevertheless, the courts recognize three exceptions from the requirement of notarization. The rule

33As pointed out by H. De Page, one can distinguish three types of promises. The first is a promise that merely amounts to an offer: for instance, a would-be seller offers to sell something if the buyer-to-be accepts. In this case, although the offer binds the offeror, there is no acceptance by the offeree. This promise is thus a simple unilateral declaration of will: there is no contract. The second kind is a contractual unilateral promise (promesse unilatérale) or option contract. In this case, there is a contract where one party undertakes an obligation and the other accepts this undertaking although he/she has not yet decided whether he/she is going to exercise his/her option to enter into the main contract. The third type is a bilateral promise (promesse bilatérale). In this case, a contract has actually been entered into whatever the expressions used by the parties (i.e., for instance, one ‘promises’ to sell and one ‘promises’ to buy). In some cases, such as sale of real estate, where the effects of the contract as to third parties depend on its notarization, it makes some sense to speak about a ‘promise’ before the parties proceed with the required formality in order to emphasize that the parties must still go before the notary. The word ‘promise’ is misleading, however, because the contract already exists and is enforceable between the parties themselves. If one party later refuses to formalize the contract so as to make it effective against third parties, the court will hold that its own decision has the effect of formalization before a notary and its decision will amount to the conclusion of the notarial act (the so-called jugement tenant lieu d’acte authentique). This discussion of the distinctions drawn by H. De Page is taken from Meinertzhagen-Limpens, Traité élémentaire no. 103, pp. 278–82.

34De Page, Traité élémentaire vol. VIII/1, no. 369; de Wilde d’Estmael, Répertoire notarial no. 8; P. Delnoy, Précis de droit civil. Les libéralités et les successions (1991), no. 25: ‘In contrast to [the treatment accorded] a promise and offer when they concern onerous transactions, the promise and offer are deprived of any binding force, even if they were made in the form [notarial document] required for donations. This is a consequence of art. 932, par. 1 of the Civil Code which provides that the donor is not bound in any manner until the donation has been accepted. Moreover, it must be accepted in “express terms”.’ See the following cases: Bruxelles, 12 March 1975, Pas., II, 141 (a widow signed a document under private signature where she expressed the view that one of her children had to receive an apartment in order for this child to be given the equivalent to what was given

to his sister. After the mother’s death, the child sought to enforce the promise but to no avail. The court held that a promise of donation, even if it were made in the form of a notarial document, is void when it has been accepted by the donee as required by art. 932 of the Civil Code); Trib. civ. Dinant, 10 April 1991, JLMB, 1993, 392; Gand, 23 Nov. 1993, TGR, 1994, 109. 35 See Raucent, Les libéralités nos. 179–85.

36See ibid., no. 123. Note, however, that this absolute invalidity becomes a relative invalidity after the promisor’s decease, which means that the promisor’s heirs may renounce the right to invoke it.

does not apply (1) when a movable is immediately delivered (don manuel, literally, by hand); (2) when a transaction is intended as a gift but is disguised as an onerous transaction (donation déguisée, for example, a sale in which it is not intended that the price will be paid); and (3) when the benefit is conferred gratuitously but indirectly through a type of transaction that is neutral or abstract (donation indirecte), such as a waiver of a debt (remise de dette), a renunciation of a right (renonciation à un droit), an assignment of a debt (cession de créance), or a stipulation for the benefit of a third party (stipulation pour autrui, by which the benefit of a contract between the donor and another person is transferred to the donee).37 However, one must keep in mind that all the requirements for a donation other than that of a notarial formality apply to don manuel, donation déguisée, and donation indirecte, as well,38 so that these transactions are not valid unless the donor immediately and irrevocably parts with the object he is giving.

One might ask whether the promise of a don manuel could be legally enforceable, and if so, whether the promises in this case would be enforceable on this ground. The answer is clearly in the negative. The don manuel belongs indeed to the category of ‘real contracts’ (contracts re) which means that such a contract is formed only on delivery of the object it concerns. Therefore, a promise of a don manuel, even when it has been accepted by the donee, has no legal effect.39

Applying these principles to this case, we can see that the promises to the United Nations Children’s Emergency Fund and to the waitress are not immediate transfers because they are mere promises, not immediate and irrevocable dispositions of property. Additionally, these promises have not been expressly accepted. Finally, the requirement of notarial authentication is not met. The promise to the niece might possibly be regarded as a present transfer subject to a condition (condition suspensive). Donations can be made subject to conditions provided that the other requirements for

37Ibid., no. 125.

38See de Wilde d’Estmael, Répertoire notarial no. 11; Raucent, Les libéralités nos. 126, 133–4, 136.

39De Wilde d’Estmael, Répertoire notarial no. 160; Trib. civ. Nivelles, 4 March 1993, Rev. not. b., 1994, 32 (by a written promise under private signature the promisor offered two specified paintings that the promisee could come and get at the address indicated on the document; the court held that the document could not contain a valid donation because it lacked acceptance and the required formality, and that it could not be a valid promise of a don manuel because one could not conceive of such a promise in the case of a ‘real’ contract).