Case 2: promises of compensation for services rendered without charge

68 the enforceabilit y of promises

promise is not specifically enforceable.3 Yet its breach gives rise to contractual liability.4 Through Kurt’s voluntary undertaking, the natural obligation has been novated (in a non-technical sense) and can thus be considered to be a civil obligation. A promise to perform a natural obligation does not, in principle, constitute a gift, and therefore Kurt does not need to comply with the legal formalities required for making a gift (see Case 1).

The fact that Tony saved Kurt’s adult child does not make any difference, nor does the fact that Tony was a professional lifeguard. The promise is enforceable once it is considered to be a promise to perform a natural obligation.

When someone should be compensated for a loss but the conditions for liability in tort are not fulfilled, it may be useful to impose liability on the ground that a promise to perform a natural obligation has been breached. This is the classical instance in which a natural obligation is enforced in the absence of a pre-existing civil obligation. The nature of the unwritten promise which transforms the natural obligation into an enforceable perfect civil obligation is the subject of ongoing scholarly debate.5 It is agreed, however, that such an act is subject to the usual conditions of validity, interpretation, and rules of evidence.

Tony may nevertheless encounter a problem as to the admissibility of evidence because of the way art. 1341 of the Civil Code has been interpreted in relation to art. 1235. Proof of the transformation of a natural obligation into a civil one is subject to the ordinary rules that govern admissibility of evidence. Normally, an agreement to pay a sum of money greater than 5,000 francs must be made in writing in a notarized document or in a contract signed by the contracting parties in counterpart. These formalities do not seem to have been respected. Nevertheless, there might have been a written document of some sort containing the promise: for example, a letter by Kurt to Tony. If so, it might come within an exception to the rule

Footnote 2 (cont.)

D 1997, Chr. 85, note Molfessis, which concerned the promise by the winner of the lottery to share the proceeds of the winnings with his friend who had actually filled in the form with the winning numbers on his behalf. After the winner had retracted his promise, the Cour de cassation upheld the friend’s entitlement to the share on the basis of a natural obligation that constituted a unilateral undertaking by the winner.

3Civ. 1, 14 Feb. 1978, Bull. civ. I, no. 59, p. 50, which held: ‘a natural obligation not changed into a civil obligation is not specifically enforceable’.

4For an analysis of prize money in terms of a unilateral contract, see J. Mestre, RTDCiv. 1996, 398 in a note on Cour d’appel, Toulouse, 14 Feb. 1996. For a criticism of the generalized use of the unilateral contract analysis, see Terré, Simler, and Lequette, Les

obligations no. 50, p. 46.

5 Ghestin, Goubeaux, and Fabre-Magnan, Traité de droit civil no. 754, pp. 737 f.

just described. The letter might constitute what is called the ‘commencement of evidence in writing’ pursuant to art. 1347 of the Civil Code.6 If such a letter did exist, proof could be completed by the evidence of witnesses.7 The exceptions to the rule of art. 1341 are fairly narrow. In the absence of any writing whatsoever, Tony could perhaps try to claim that he fell within another exception which is set out in art. 1348 of the Civil Code: that it was morally impossible for him to obtain evidence in writing of the contract. Such an argument has succeeded before the courts when proof must be made of the transformation of a natural obligation.8 Nevertheless, the trial courts have absolute power to determine the issue.9 Although the case law is contradictory, it seems as though this exception applies primarily to family relationships, or relationships of affection or subordination. It is therefore uncertain whether Tony could benefit from it. If the court decides that Tony has not proven that he falls within one of the exceptions just described, his claim will be inadmissible and therefore

no effect can be given to the promise.

As the expression of a duty of conscience, the natural obligation has sometimes been considered to be a legal doctrine which reflects the morality of an elite.10 To see why such an obligation is rarely enforced by the courts, consider the following alternatives. Either Kurt has such a high idea of his moral duties that it is likely that he will formalize or perform his promise, or Kurt made his promise only lightly in a moment of fear – he will never formalize or perform it and Tony will have difficulty in proving that it was made. In the first case, it is doubtful whether an action would be brought before the courts. In the second, an action may arise, and Tony has standing to bring one since he suffered a definite direct and personal loss. But evidence of the promise that transforms the natural obligation may well be a procedural obstacle.

Nevertheless, even if Tony cannot prove that the promise was made, he may still have a remedy. In analogous cases, the court has sometimes said that a so-called ‘rescue agreement’ (convention d’assistance) has been

6Evidence in writing is commenced when something is submitted that is written by the defendant or his representative which renders the facts that are alleged probable. The judge may consider that a party’s declarations given before him, or his silence or refusal

to appear, are equivalent to evidence commenced in writing. 7 Civ. 1, 28 June 1954, Bull. civ. I, no. 214.

18 See, for example, Cour d’appel, Paris, 9 April 1957, D 1957, 455.

19 See Civ. 1, 21 Feb. 1956, D 1956, 287, where it was held that the concept of moral impossibility could not be invoked between people who were cohabiting since the underlying idea is that it is not practical to imagine people in a certain relationship carrying out the necessary formalities. The court also refused to define the concept of moral impossibility.

10 Ghestin, Goubeaux, and Fabre-Magnan, Traité de droit civil no. 743, p. 725.

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formed.11 According to this analysis, by coming to help, that is, by jumping from the boat or diving in from the side, Tony made a clear, firm, and unequivocal offer to help. Even if Kurt or his adult child kept silent during the rescue operation – indeed, even if they were unconscious – their silence would, by way of exception, constitute an acceptance since the offer is deemed to be made in their sole interest.12 Such a ‘rescue agreement’ is simply a device by the courts that enables the rescuer and subsequent victim of the rescue operation to be indemnified. In one case, for example, a garage owner was hurt while rescuing a motorcyclist whose vehicle was damaged. It was held that the rescue operation gave rise to an obligation on the part of the person rescued to compensate the rescuer for the physical damage suffered by the latter who had voluntarily offered assistance.13 Clearly, such a device is highly artificial, not to say fictional. It has been severely criticized by scholars who find it difficult to square the existence of the convention d’assistance with the rules on contract formation. How can one imagine that the parties reached an agreement when one of them was under water, or, more generally, in any kind of emergency situation that prevented him from making an acceptance?14 According to some scholars, it is not only impossible to imagine that consent has been given but also unnecessary. Some consider it more appropriate to allow a claim based on a type of quasi-contract, gestion d’affaires. Others have argued that such a claim cannot be brought because the rescuer is under a legal obligation to assist a person in danger. Under French law such an obligation is imposed by legislation and carries criminal sanctions. One could say, in such a case, that the legal obligation carries with it an equitable consequence which the courts can imply under art. 1135 of the Civil Code:15 namely, that the rescuer should be compensated for any harm he suffers. Nevertheless, art. 1135 says that the

11In the examples in the case law, the court’s conclusion that a contract was formed is open to criticism. The courts have been inventing agreements of this sort since Civ. 1, 27 May 1959, RTDCiv. 1959, 735, note H. Mazeaud. See, for example, Civ. 1, 1 Dec. 1969, Bull. civ. I, no. 375, p. 299, D 1970, p. 422, note Puech, JCP, II, 16445, note Aubert (assistance given by garage owner to motorcyclist); Soc., Bull. civ. V, no. 421, p. 320; RTDCiv. 1987, p. 533, note J. Mestre (assistance given by employee of garage to push a lorry out of a ditch); Civ. 1, 27 Jan. 1993, RTDCiv. 1993, 584; G. Viney, JCP, 1993, I, 3727, no. 4 (help given by a brother to another, the owner, to cut down a tree).

12Ghestin, Traité de droit civil no. 406, p. 363.

13Civ., 1 1 Dec. 1969, Bull. civ. I, no. 375, p. 299, D 1970, p. 422, note Puech, JCP, II, 16445,

15Article 1135: ‘Agreements obligate a party not only as to what is expressly undertaken but also as to all the consequences that equity, custom or law give to the obligation according to its nature.’