The promises are not enforceable under the doctrine of promissory estoppel because that doctrine is a shield, not a sword.

In a case similar to 1(b), however, an English court found that there was consideration even though marriage was really the motive for the promise, not something given in exchange for the promise. The judge was ‘willing to interpret facts imaginatively in order to find consideration’. Whether other courts would do so is hard to predict, but they might, especially if the couple relied on the promise or it seems to be seriously meant. Ireland: None of the promises are enforceable because they lack consideration. Moreover, the promise in Case 1(b) is not enforceable because it fails to comply with a statute requiring that ‘an agreement made upon consideration of marriage’ be in writing. The promises would be enforceable if made by deed (‘under seal’) which still requires that some impression be made on the paper, if only with the end of a ruler. They would be enforceable if made by a trust, which requires no formalities. The requirements for a valid deed or trust are not generally known to lay people.

The promises are not enforceable under the doctrine of promissory estoppel because that doctrine is a shield, not a sword.

Preliminary comparisons

General principles:

The significance of form: In none of the systems is an informal executory promise to make a gift enforceable in principle. In one system (Belgium), there is no way to make such a promise binding: to have legal effect, a gratuitous transfer of property must not only be made by a notarial document and expressly accepted but it must be immediate and irrevocable. In the other systems, the promise can be made binding by a formality or by using a different form such as a trust. In Scotland, Spain, and Portugal, a promise in writing is sufficient. In France, the Netherlands, Italy, Austria, Germany, and Greece, the formality is subscription to a document containing the promise before a notary. In Italy and Greece, the promise must also be formally accepted. In England and Ireland, the promise can be made by deed (‘under seal’) or the property can be placed in trust for the donee. In Austria, it may also be possible to make such a promise binding by using a contract of agency (mandatum): that is, by instructing an agent to deliver money to the donee.

The significance of reliance: Even if the proper formality was not used, in Scotland, by a special statute, the promisee will still have an action if he relied on the promise provided he did so with the knowledge and

66 the enforceabilit y of promises

acquiescence of the promisor, and both his reliance and the detriment to him if the promise is not kept are considerable. Although England and Ireland recognize a doctrine of promissory reliance, the promisee could not use it in these cases since it can only serve as a defence, not as the basis of a claim. The English reporter noted, however, that when the promisee has relied, courts are more inclined to be inventive in finding consideration. Other systems impose liability, even though a valid contract has not been concluded, for conduct that misleads the other party and induces him to change his position (France, Belgium, Portugal, Italy, the Netherlands, Austria, Germany, and Greece). Nevertheless, in these systems, courts have not yet applied this doctrine to a promise to make a gift. The Portuguese and Greek reporters thought the courts would; the French, Belgian, and Italian reporters thought they would not; and the others thought they might or might not.

Exceptions

Case 1(a): In Belgium, the informal promise of a birthday present would be enforceable if it is a ‘customary present’ (cadeau d’usage). To qualify, it must be customary to give such a present and the amount must be moderate given Gaston’s resources.

b.Case 1(b): The promise to the person about to marry is enforceable in Belgium because it is deemed to be a promise to fulfil a natural obligation. In Germany, it is enforceable under a special provision of the German Civil Code. In one English case, such a promise was enforced even though, as the English reporter noted, to find consideration the court had to ‘interpret the facts imaginatively’ since marrying was the motive for the promise but not something done in return for it. In Ireland, the Statute of Frauds requires such a promise to be in writing to be enforceable.

c.Case 1(c): Absent a formality or reliance, in principle, the promise is not enforceable in any system. In France, at least at one time, some such promises were enforced if the promisor himself obtained some particular benefit such as hearing the church bell he remembered from his childhood ring again, or having mass said for him. In Germany, such a promise would be enforceable if made through a natural person who only acts as a conduit rather than, as here, through a legal person. But the promise in this case would not be enforceable in France or Germany.