34 the enforceabilit y of promises

their validity, such as express acceptance, are met.40 But it is doubtful that the promise should be interpreted in this way. Again, the requirement of notarial authentication has not been met.

Moreover, there is little chance that the promisor will be held liable for violating a pre-contractual duty to act in good faith even if the promisee incurs expenses in the expectation that the promise will be kept. This possibility would certainly be a serious one if the promise had concerned an onerous transaction. In this case, however, the possibility appears very thin considering the very specific regulation of donations and the general distrust of donations expressed by the legislature. We must remember that, in contrast to the general law of obligations, a promise of a donation has no legal effect, the object being to protect the would-be donor and his family.

the netherlands

In all four cases, Gaston’s promise is a gift. Therefore, he is not bound by his promise unless he actually handed over the money (art. 7A:1724 of the Civil Code41), which is not the case here, or executed a notarial document

40But they may not defeat the requirement of irrevocability described above (de Wilde d’Estmael, Répertoire notarial no. 121) and they are impossible in the case of a don manuel (ibid.). In the case of the promise to the niece, Belgian law prefers to speak of a ‘term precedent’ (literal translation of terme suspensif) rather than a condition precedent. A ‘term’ is defined as a future and certain event, and here the future event – reaching her twenty-fifth birthday – is certain. A donation can be subject to such a ‘term’ (ibid., nos. 117–18). It is also impossible to conceive of such a ‘term’ in the case of a don manuel.

41Article 7A:1724 of the Civil Code: ‘Gifts from hand to hand of movable objects, sums of money, or bearer notes do not demand a deed and are valid by the simple delivery to the donee or to a third party who accepts the gift for him’ (trans. J. H. M. van Erp).

The Dutch Civil Code has a so-called stratified structure (gelaagde structuur) which goes from more general to more specific rules. As a result, rules governing contracts will be found in different places according to the level of abstraction. To give an example: the rules applicable to a sale of goods to a consumer are found in Title 2 (Juridical Acts) of Book 3 (Patrimonial Law in General); in Book 6 (General Part of the Law of Obligations), especially in Title 5 (Contracts in General); and in Title 1 (Sale and Exchange) of Book 7 (Specific (Nominate) Contracts), especially articles such as 5, 11, 13, 18, and 24. In principle (that is, except in case of a specific provision), the rules on formation and validity – the themes that recur in the cases discussed here – are to be found in Title 6.5 and (more importantly) in Title 3.2.

The new Dutch Civil Code is not yet complete. Books 3, 5, and 6, which contain the general part of patrimonial law (contracts, property, and torts), and a part of Book 7 (on specific, nominate contracts) entered into force in 1992. Books 1 (Family Law), 2 (Legal Persons), and 8 (Transport) had entered into force previously. Some of the drafts on specific contracts have not yet taken effect. For those contracts which were dealt with

(art. 7A:171942). The promise in Case 1(a) is a promise with a condition precedent (art. 6:2243), but that makes no difference.

If he had made the promises through a notarial document, all four of them would be binding. That result is based on the rules on gift (see art. 7A:1719 of the Civil Code). A gift is a contract, and therefore the notarial document must be executed together with the promise.

If a valid contract is concluded by using a notarial document, the estate is liable if Gaston dies. See art. 6:249 of the Civil Code.44

If Gaston did not use a notarial document, the promises are not enforceable even if the promisees incurred expenses in the expectation that they would be kept. The reliance principle (art. 3:35 of the Civil Code; see below) will not make the promise binding since that would undermine the purpose of the form requirement, which is to protect people against their own light-hearted generosity. Neither will the duty to act in good faith be of any help. In the Plas/Valburg case, the Hoge Raad held that a party may recover his expectation interest if the other party breaks off negotiations in a manner contrary to good faith.45 However, the test the Court adopted was aimed at a situation where protracted negotiations are brutally broken off.46 Here negotiations were not broken off since a contract is concluded. The question presumes that all promises have been accepted. Therefore agreement has been reached. Nevertheless, it is invalid for lack of form.

In the Plas/Valburg case, the Hoge Raad also held that a party who breaks off negotiations may be liable to make compensation for expenses that the

under the old code (which was very similar to the French Civil Code) these old rules still apply. They are to be found in temporary Book 7A.

Most of the translations of the Civil Code provisions are taken from: P. P. C. Haanappel and Ejan Mackaay, New Netherlands Civil Code / Nouveau Code Civil Néerlandais (1990).

42Article 7A:1719 of the Civil Code: ‘No gift except the gift which is dealt with in art. 1724 can be done in a different way than by notarial deed of which the original remains with the notary under a sanction of nullity’ (trans. J. H. M. Erp).

43Article 6:22 of the Civil Code: ‘A suspensive condition causes the obligation to take effect upon the occurrence of the event; a resolutory condition extinguishes the obligation upon the occurrence of the event.’

44Article 6:249 of the Civil Code: ‘Unless the contract produces a different result, its juridical effects also bind successors by general title.’

45HR 18 June 1982 (Plas/Valburg), NJ 1983, 723, note Brunner, AA 1983, 758, note Van Schilfgaarde.

46It does not seem likely that the Hoge Raad will broaden the field of application of the Plas/Valburg doctrine. Recent case law rather suggests that the Hoge Raad intends to limit its application by restricting the test. See M. Hesselink, ‘De schadevergoedingsplicht bij afgebroken onderhandelingen in het licht van he Europese privaatrecht’, WPNR, 1996, 6248 (pp. 879–83), 6249 (pp. 906–10), at 881.

36 the enforceabilit y of promises

other party incurred even if negotiations were broken off before the stage at which that party was justified in believing that a contract would certainly be concluded. Allowing expenses, which are part of reliance damages, to be recovered would not, strictly speaking, undermine the protection of a party against his own generosity. It would not be the same as enforcing the promise. Therefore, the rules on gifts should not preclude the courts from awarding reliance damages on the basis of the good faith principle. Nevertheless, there are no Dutch cases that do so when a party has relied on a gift. The reason is that, as noted, the doctrine of precontractual liability has been applied almost exclusively in cases where negotiations were broken off.

spain

Spanish legal scholars maintain that unilateral promises, once accepted, form contracts that are unilateral in the civil law sense of the term: they impose an obligation on only one of the parties.47 Article 1261 of the Spanish Civil Code provides:

There is no contract unless the following requirements are met:

(1)Consent of the contracting parties,

(2)A certain object that is the subject matter of the contract,

(3)A cause of the obligation that is established.48

The Spanish Civil Code does not define unilateral contracts, although those of other civil law systems do (for example, art. 1333 of the Italian Code). The prevalent view, however, is that in contrast to the English common law, there is a unilateral contract when there is a promise, an acceptance, and only one of the parties assumes obligations.

Unilateral promises are not enforced unless they are accepted.49 Acceptance transforms them into contracts. Some scholars50 emphasize

47E.g., Díez Picazo and Gullón, Sistema de derecho civil, vol. II, 144.

48Unless otherwise noted, all quotations from the Spanish Civil Code are from Julio Romanach’s translation, Civil Code of Spain (1994).

49TS, 17 Oct. 1932, 5 May 1958 (see Case 2), and 13 Nov. 1962. Prior to 1981, however, promises like the one in Case 1(b) to people about to marry were enforceable in Spain even without acceptance: Castán Tobeñas, Derecho civil, vol. IV, 234. The former art. 1330 of the Civil Code provided that acceptance is not needed for this kind of donation. This principle has survived in art. 18 of the Catalan Civil Code (‘acceptance is not necessary for [donations by reason of marriage] to be valid’ (translation by the author from the original code in Catalan)).

50E.g., L. Díez Picazo, ‘Las declaraciones unilaterales de voluntad como fuentes de obligaciones y la jurisprudencia del tribunal supremo’, Anuario de derecho civil 27 (1974), 456.

that this is the essential and historic meaning of the characteristic way in which promises are treated in Spanish law. These scholars contend that, with the exception of the politicatio and the votum, Roman law did not enforce any unaccepted promise. The motto is: ‘word given carries duties if it has been taken’. These scholars point out that, conversely, no other European legal system enforces unilateral promises.

Nevertheless, for a promise to make a gift to be enforceable, there must be an intention to give, a causa donandi. The determination of whether there is one is purely subjective51 and psychological.52

Moreover, even if these conditions are met, no obligation arises unless the thing promised is actually delivered (datio rei) or the promise is made in writing. Article 632 of the Civil Code provides: ‘A donation of a movable thing may be made orally or in writing. An oral one requires a simultaneous delivery of the thing donated. In the absence of this requirement, it shall not be effective unless made in writing and the acceptance appears in the same form.’ Despite the language of this provision, if the promise is in writing and has not been revoked, then even though there has been no written acceptance, the Tribunal Supremo has considered the initiation of legal proceedings in writing by the promisee to enforce the promise to be a de facto acceptance in writing. On these grounds, even though there was no prior written acceptance, it enforced the promise of the owner of a disco club to his out-of-wedlock children that they would have the profits made by the club.53 It enforced the written promise of an heir to follow the unwritten intentions of her testator.54

Therefore, Cases 1(a), 1(b), 1(c), and 1(d) would all be resolved in the same way under Spanish law. In each case, even if there is a causa donandi, no obligation arises unless the promise was made in writing or the thing promised is actually delivered.55

51 Puig Brutau, Fundamentos de derecho civil, vol. II-1, 132.

54TS, 13 Nov. 1976.

55Since the promise could be made binding by putting it in writing, there is no need to consider whether some other formality might work instead. In any event, a trust would not. In Spain, the institution most similar to a trust would be a ‘foundation’ (fundación). The foundation is a legal person. Goods are given to it to further a certain purpose: for example, education or the fight against hunger in the world. Spanish law allows foundations to be created only when there is a charitable purpose and it has indefinite beneficiaries, like charitable trusts in the United States. There is no such thing as a fundación with private goals. All the founding person can do is establish priorities within the foundation such as to assist first his or her relatives in case of need, without excluding strangers.

Foundations are created by unilateral declarations that do not need acceptance. They