76 the enforceabilit y of promises

Jurists discuss whether a promise to fulfil a moral obligation can be enforceable. The common position is that the law recognizes only its actual fulfilment, and not a mere promise to perform or recognition of the duty.36

italy

Tony cannot enforce the promise if Kurt changes his mind unless Kurt has promised the amount of money formally through a notarial document and Tony has accepted (art. 782 of the Civil Code), as explained in discussing Case 1. It does not matter if Tony was a professional lifeguard or if he performed the rescue as part of his normal duties.

Kurt promised the money in gratitude for a service rendered by Tony. A promise such as this one which is motivated by gratitude or the desire to make compensation for a past service is termed a ‘remunerative gift’. According to art. 770 of the Civil Code,37 it is subject to the requirements of a contract of donation.

Article 770(2) recognizes certain other types of liberalities for which formalities are not required. This category of gifts is called ‘liberality according to usage’ (liberalità d’uso) and includes all the gratuitous acts which are mandated by social convention. Nevertheless, delivery (traditio) seems necessary in these cases. The motivation seems insufficient to make the informal promise enforceable.38 Courts often distinguish between a ‘remunerative gift’ and ‘liberality according to usage’ by an objective test: they ask if the amount given is in proportion to the service received.39

Article 2034 of the Civil Code provides that what has been paid in

36See Costa, Direito das Obrigações, 160.

37Article 770 of the Civil Code: ‘Remunerative gift: A liberality exercised in gratitude or in consideration of the merits of the donee or for special remuneration is also a gift. A liberality that is usual to make for services performed or in any way according to usage does not constitute a gift.’ See also Cass. civ., sez. II, 22 Feb. 1995, no. 1989.

38See R. Sacco, ‘Il Contratto’, in Vassalli, Tratt. di dir. civ. 6:2 (1975), 607; A. Torrente, ‘La Donazione’, in Cicu-Messineo, Tratt. dir. civ. e comm. 22 (1956), 94; Marini, Promessa ed affidamento, 397; contra G. Castiglia, ‘Promesse unilaterali atipiche’, Riv. dir. com. I (1983), 327–41.

39See Cass. civ., 28 June 1976, no. 2452, in Foro it. I (1977), 456; Cass. civ., 5 April 1975, no. 1218, in Giust. civ. I (1975), 1310; but see Cass. civ., 10 Dec. 1988, no. 6720, in Nuova giur. civ. comm. I (1989), 614, which considers only the usage. On this controversial distinction see also, most recently: Cass. civ., sez. I, 14 Jan. 1992, no. 324, in Nuova giur. civ. comm. (1992), 654; Cass. civ., sez. II, 2 Feb. 1992, no. 1077, ibid.; F. Regine, ‘Donazione rimuneratoria e liberalità d’uso: una difficile distinzione’, Nuova giur. civ. comm. (1992), 654. See also Marini, Promessa ed affidamento, 396; C. Manzini, ‘Sugli spostamenti patrimoniali effettuati in esecuzione di obbligazioni naturali’, Contr. e impr. (1987), 882 at 911.

fulfilment of a ‘natural obligation’ cannot be recovered in an action for restitution.40 A ‘natural obligation’ arises from a moral or social duty and not from the law. But the Code contains no other special rules governing natural obligations.

Gino Gorla believes that, nevertheless, special rules should govern the enforceability of an informal promise to give a sum of money in remuneration for services one has received gratuitously in the past (causa praeterita). The promisor’s intention is not to enrich the promisee by making a gift (animus donandi) but rather to make compensation (animus solvendi). Such promises, in Gorla’s view, should be enforced provided two conditions are met. First, the service rendered must have a monetary value (appréciable à prix d’argent). Second, the amount promised must be proportionate to the value of the service or the performance received. If these conditions are fulfilled, there is a sufficient basis for enforcing the promise (cause suffisante).41

In Gorla’s view, in order to prevent injustice, whether there is a sufficient basis for enforcing the promise and a sufficiently important natural obligation should be determined case by case. It would be a question of fact, and therefore not reviewable by the highest court, the Corte di Cassazione, which decides only questions of law.

Although Gorla’s view is very interesting, it has not been accepted by Italian case law and scholars. The fact that a promise was made to compensate for a performance received in the past is not sufficient to make it binding.42

austria

The promise will be enforceable in both Cases 2(a) and 2(b). According to the prevailing view in the literature and the practice of the courts, a promise of a donation that honours a moral obligation43 does not constitute a gift.44 As a result, the form requirement does not apply. According

40Article 2034 of the Civil Code: ‘Natural obligations: Recovery of that which was spontaneously given in performance of moral or social duties is not permissible, unless the performance was made by a person lacking capacity. The duties indicated in the preceding paragraph, and any other duty for which the law accords no action but bars recovery of what was spontaneously paid, shall have no other effect.’

41See Gorla, Il contratto, 126; but see also Marini, Promessa ed affidamento, 389; A. D’Angelo,

Contratto e operazione economica (1992).

42See e.g. Sacco, ‘Il Contratto’, 582; G. Castiglia, ‘Promesse unilaterali atipiche’, Riv. dir.

44 OGH SZ 38/227; EvBl 1964/102; JBl 1967, 257; JBl 1971, 197; JBl 1978, 645.

78 the enforceabilit y of promises

to a second view such a promise does constitute a gift, but one to which the form requirement is not applicable.45

Whether a moral obligation exists depends on the circumstances of the particular case. In Cases 2(a) and 2(b), Austrian courts would come to the conclusion that Kurt has a moral obligation to Tony. Two points seem to be decisive: that Tony’s action was of great importance to Kurt and that Tony suffered harm because of this action. Kurt therefore cannot change his mind.

If Tony were a professional lifeguard or if he performed the rescue as part of his normal duties, it could be debated whether Kurt is under a moral obligation to compensate him. As in Case 1(b), the promise can be taken in different ways. If somebody acts as a negotiorum gestor, under certain circumstances Austrian law gives him the right to claim compensation from the principal.46 One type of case where compensation is granted is the so-called necessary negotiorum gestio where the gestor acts in order to avert an impending harm to the principal and it is not possible to ask the principal’s approval first.47 In such a case the gestor is entitled to claim compensation for the costs he incurs and for any harm he suffers because of his action. In Case 2(a), Tony would be acting as a negotiorum gestor. The same would be true in Case 2(b) if Tony had rescued a child who was a minor since, by averting the child from harm, he would also avert harm to the parents. In Case 2(b), however, Tony rescued Kurt’s adult child. If the child is already grown up and living on his own so that the parents do not have a duty of protection towards the child, Tony may not be able to recover.

If Tony does have the right to claim compensation, then even though he has not incurred any costs, he may claim compensation for the harm he suffered. If he has already made this claim, Kurt’s promise may constitute either a settlement or an acknowledgment, in which case the form requirement would not apply.48

If Tony were a professional lifeguard or if he performed the rescue as part of his normal duties, it is doubtful whether his action would be qualified as a negotiorum gestio. It could be argued that only an action for which there is no antecedent legal duty constitutes a negotiorum gestio. The prevailing view in Austria, however, is that even in such situations the gestor can have the right to claim compensation, provided the legal rule which makes the action mandatory does not rule out compensation.49

49P. Rummel in Rummel, ABGB § 1035 no. 6; Ehrenzweig, System vol. II/1, 717. In the case LGZ Wien MietSlg 37.096, a firefighter was allowed to claim compensation although he

germany

In Case 2(a), the promise is not binding because Kurt promised to make a gift without complying with the formalities required by § 518 of the Civil Code (see Case 1). As far as a claim in contract is concerned, it does not matter that Kurt was under a moral obligation to give some money to Tony, nor whether Tony was a lifeguard.

Nevertheless, Kurt could be liable for Tony’s damages under §§ 677, 683, and 670 of the Civil Code. If Tony did Kurt a special kind of favour (Geschäftsführung ohne Auftrag), Kurt is also liable for the damages which can typically occur in connection with Tony’s activity.50 Kurt’s promise could serve as evidence in support of Tony’s claim for damages. But this would only be possible if it could be interpreted as an acknowledgment. If Kurt merely wanted to express his gratitude, it would have no effect whatsoever. If, however, Tony acted as a professional lifeguard, it is less clear that he would have such a claim. It would depend on the nature of his duty (public or private law), his relationship with his employer, and Kurt’s relationship with Tony’s employer.

In Case 2(b), which person Tony rescued does not affect the question whether we have a promise to make a gift. It only makes a difference for Tony’s claim for damages. If the child is an adult, Tony could only sue the child for damages because he did not do the favour for Kurt. Kurt had no special responsibility for his child any more.

greece

Kurt’s promise was made because he feels a special moral duty to Tony.51 Obligations arising from reasons of a special moral duty or on grounds of decency are termed ‘natural obligations’, which means that the promisee cannot compel the promisor to perform but if the promisor does so of his own free will then he cannot recover his performance.52 Article 906 of the Civil Code provides: ‘A claim for the return of what was not due cannot be brought when a payment was made by reason of a special moral duty or of reasons of propriety.’

Such an obligation becomes an enforceable contractual obligation if

had performed his action as part of his normal duties as a firefighter. If Tony is an employee of Kurt, either Tony’s damage will be covered by social security or Kurt will be liable because of § 1014 of the Civil Code. 50 BGHZ 89 (1984), 153 (157).

51Karakostas in Georgiadis and Stathopoulos, Civil Code, art. 512; EfAth 1839/55 EEN 23, 45.

52A. Ligeropoulos, ‘Natural Obligations and Relative Legal Forms’, in C. Fragistas, Miscellany in honor of Ch. Fragistas, vol. XII, part VI (1970–1), 227. Stathopoulos, Law of Obligations 37.