Summaries

formality, if the donor received some benefit such as masses for his soul or hearing a church bell ring that he remembered from childhood. Belgium: If the promises are gifts, they would be unenforceable, not only because they lack notarial authentication, but also because gifts must be immediate and irrevocable transfers of property and they must be expressly accepted by the promisee.

There is little possibility a court would find a violation of a precontractual duty to act in good faith because it would contravene the policy behind the special requirements for gifts.

Nevertheless, the birthday present in Case 1(a) would be enforceable if it is a ‘customary present’ (cadeau d’usage) since then the rules for gifts do not apply. For the present to qualify, it must be customary to give such a present and the amount must be moderate given Gaston’s resources.

The gift in Case 1(b) is enforceable because it is propter nuptias and so the rules on gifts do not apply because making such a gift is considered to be the fulfilment of a natural obligation.

The presents in Cases 1(c) and 1(d) are gifts (absent any natural obligation in Case 1(d)), and are therefore unenforceable.

The Netherlands: None of the promises are enforceable because they lack notarial authentication. While pre-contractual liability is a possibility, in all the Dutch cases imposing such liability negotiations were broken off. Spain: None of the promises are enforceable because they were not made in writing. If they had been, they would be enforceable even absent an express acceptance and notarial authentication.

Portugal: None of the promises are enforceable because they were not made in writing. If they had been, and they had been accepted, they would be enforceable even absent notarial authentication.

Nevertheless, if the promisee has relied, the breach of promise would violate good faith and would therefore give rise to pre-contractual liability (in the reporter’s view, though there are no decided cases).

Italy: None of the promises are enforceable because they lack notarial authentication. All of them except 1(b) would not be binding, in addition, because they were not formally accepted by the promisee.

If the promisee relied, a claim in tort is possible but doubtful.

Austria: None of the promises are enforceable because they lack notarial authentication.

Possibly one could make such a promise binding by using a contract of mandatum: by instructing a third party to deliver money to the donee.

Liability in tort or for breach of good faith is possible, but there are no cases in point.

64 the enforceabilit y of promises

There might be liability for culpa in contrahendo if Gaston indicated his willingness to pay the money promised, if the promisee relied, and if Gaston has no legitimate reason for refusing to pay, but it has not yet been determined whether this doctrine applies to gifts.

Germany: Except as noted below, the promises are not enforceable because they lack notarial authentication.

In Case 1(a), Gaston may be liable for culpa in contrahendo if he deceived Catherine about the need for a formality or if he was negligent in not formalizing the promise and he had a greater responsibility than she to do so because, for example, of his superior knowledge.

In Case 1(b), the promise is enforceable because the Civil Code has a special exception for gifts to people about to marry.

In Case 1(c), the promise would have been enforceable if it had been made to a natural person who served as a mere conduit to the ultimate beneficiary. It is not enforceable because the UN is not a natural person. Greece: None of the promises are enforceable because they lack a notarial formality and acceptance.

There may be an action for bad faith in conducting negotiations if the promisee relied and the promisor was at fault. There is such an action if Gaston knew the promisee expected the promise to be kept but he has already decided not to draw up a notarial document so as to be free to breach it, and Gaston acted wilfully or with gross negligence, and the promisee suffered harm through reliance.

Scotland: None of the promises are enforceable because they are not in writing, as required by statute.

According to the same statute, however, there would be an action if the promisee has incurred expenditure in reliance on them if he did so with the knowledge and acquiescence of the promisor, if his reliance was considerable, and the detriment to him if the promise is not kept is also considerable.

England: The promises in Cases 1(a), 1(c), and 1(d) are unenforceable because they lack consideration. In Cases 1(a), 1(b), and 1(d) the promises might also be unenforceable if the promisor lacked the intention to create legal relations. To be enforceable, the promises must be made by deed (that is, ‘under seal’). A wax impression is no longer necessary: just a written document that makes it clear on its face that it is intended to be ‘under seal’. They would also be enforceable if cast as sham bargains by giving nominal consideration. They could also be made enforceable by establishing a trust, provided Gaston had in mind, not just money, but a specific sum of money. In that case, no formality would be required, nor even a third party, since Gaston could declare himself to be the trustee.