80 the enforceabilit y of promises

the parties conclude a contract of donation53 dictated by a special moral duty. According to art. 512 of the Civil Code, ‘a donation made by reason of a particular moral duty or on grounds of decency shall not be subject to revocation’. Consequently, in this kind of donation the normal rules that concern the revocation of the donation do not apply. As pointed out in our discussion of Case 1, however, a contract of donation is also subject to the special rule of art. 496 of the Civil Code which requires a notarial document to be drawn up if the promise is to be valid. Nevertheless, it has been suggested in theory that this rule does not apply in cases of donation dictated by a special moral duty because of the special nature of this kind of donation.54 Furthermore, art. 512 of the Civil Code may be applied here by analogy. According to this article, if a donation exceeds the amount that is reasonable, the surplus is subject to the regulations concerning revocation of donation.55 So it may be argued here that if the donor promised an unreasonably high amount on account of a moral duty owed to the donee, then the surplus will be considered as a usual donation which would not be valid unless a notarial document is drawn up.

Thus, in the present case, Kurt will be obliged to keep his promise but only for an amount that is reasonable.

If Tony is a professional lifeguard, it matters whether the promise was made before or after the rescue. In the first case a contract to do a job would have been concluded between Kurt and Tony and so Kurt would be obliged to keep his contractual obligation.56 In the second case, even if Tony performs the rescue as part of his normal duties, Kurt’s promise will be considered as a donation dictated by a special moral duty and it will be judged in the way described earlier.

scotland

Although Kurt has received a benefit from Tony, at the time the promise is made there is no potential future benefit for Kurt inherent in the promise. It is submitted, therefore, that this is a gratuitous unilateral obligation. The promise is valid and enforceable only if constituted in writing: s.1(2)(a)(ii) of Requirements of Writing (Scotland) Act 1995.57 It must be clear that the alleged promise was intended to create a legal obligation: because it must be constituted in writing, this would suggest such an

53Ligeropoulos, ‘Natural Obligations’.

54The protection that the notarial deed offers to the donor is not being justified here.

82 the enforceabilit y of promises

that the existence of a pre-existing moral obligation to the promisee could suffice as good consideration.61 The term ‘moral obligation’ was given a narrow construction, however, applying essentially to cases where the promisor’s prior obligation was not binding because of a specific legal defect. Thus, a promise to pay a statute-barred debt was binding.62 Many of these exceptions have been overruled (see Case 3 for a current exception), but in any event none cover the situation under consideration, where the promisor’s ‘moral’ obligation is ‘moral’ in the ordinary, rather than technical sense. Indeed, the facts are similar to the well-known nineteenthcentury case, Eastwood v. Kenyon,63 where a husband’s promise to reimburse expenses incurred by the guardian of his wife when she was a young girl was unenforceable for lack of consideration.

The resolution of Case 2 according to orthodox law, then, is clear: the promises are not enforceable. The facts of Case 2, however, describe the sort of situation in which, according to some commentators – notably Professor Atiyah – English courts will strain hard to find or invent consideration. Kurt’s moral obligation to Tony is the sort of ‘good reason’ that Atiyah has suggested sways courts to find that consideration in the technical sense is satisfied.64 Indeed, in his text on contract law, Atiyah refers to an American case with facts very similar to Case 2,65 and suggests that ‘the moral appeal of the plaintiff’s case would be so great that any court would surely strive to uphold his claim’.66 It is difficult to deny that an English court would indeed ‘strive’ to uphold either of Kurt’s promises, but, at the same time, an English court, particularly a contemporary English court, would need some factual basis, however slim, on which to support a conclusion that consideration was provided for Kurt’s promise. They would refuse, it is suggested, to invent the consideration entirely out of thin air. In the case where Tony is not a professional lifeguard, no such factual basis can easily be found. It appears a clear and unambiguous case of past consideration (and, as such, stands in contrast to the recent examples of allegedly invented consideration cited by Atiyah, where the facts are highly complex67). Where Tony is a lifeguard, the court might – though I think this unlikely – imply some sort of prior agreement that Tony be

63[1840] 11 A & E 438.

64See P. S. Atiyah, ‘Consideration: a Restatement’, in P. S. Atiyah, Essays on Contract (1986),

66Atiyah, Law of Contract, 125. There does not appear to be a comparable English case.

67E.g., Pao On v. Lau Yiu Long [1980] AC 614.

reimbursed for the cost of his rescue. This is unlikely to happen if Tony did the rescue as part of his normal duties (moreover, in this case Kurt’s ‘moral obligation’ is weaker, since Tony is paid as a lifeguard and presumably will be compensated for his losses by his employer or employer’s insurance), but it is a possibility if, say, Tony is off-duty, Kurt is aware that Tony is a professional, and Kurt in some way encourages Tony in the rescue. The request or encouragement would be crucial, since only then could Tony argue implied assumpsit (as described above).

ireland

In order to enforce the promise, Tony must show that the promise was made by way of a deed under seal or that there was some consideration made in exchange for the promise (see Case 1). In this instance the promise made by Kurt was made after Tony had performed the act of saving (a) Kurt or (b) Kurt’s adult child from drowning after a boating accident.

If a promise is made after some gratuitous act has been performed by the promisee then the subsequent promise is not supported by consideration. The benefit conferred before the promise was made cannot be said to have been made by reference to an antecedent promise.68

However, if it can be shown that Kurt expressly asked Tony to save either Kurt himself or Kurt’s adult child from drowning after a boating accident and that when this requested act was provided the parties did not intend the act to be gratuitous, the case might fall within the exception in

Lampleigh v. Braithwaite69 as applied in Bradford v. Roulston.70 In Bradford v.

Roulston, it was found that ‘where there is a past consideration, consisting of a previous act done at the request of the Defendant, it will support a subsequent promise; the promise being treated as coupled with the previous request’.

If the promise was enforceable, having fallen within the exception above, then Kurt would be liable to Tony irrespective of whether Tony had saved either Kurt himself or Kurt’s adult child. Although the principles of contract law provide that consideration must ‘move from the promisee’,71 consideration need not move to the promisor. Treitel states that consideration may ‘move from the promisee without moving to the promisor