Summaries

instances in which courts have recognized natural obligations. Typical instances involve family relations. A court would be less likely to enforce the promise of compensation for saving the adult child since the promisor himself did not obtain a benefit.

The promises might be enforceable as a donación remuneratoria, that is, a gift to compensate the donee for services rendered for which the donor is not legally required to pay. If so, at least according to many scholars, the formality is not required (see Case 1) except to the extent the amount promised exceeds fair compensation.

Portugal: Most likely, the promises are unenforceable because they were not made in writing. But the promise in Case 2(a) (where Kurt himself was rescued) may be enforceable as an acknowledgment of a duty to make compensation to Tony as a negotiorum gestor, a duty that would exist even absent a promise. On that theory, the promise would be enforceable even if Tony were a professional lifeguard but not if performing the rescue were part of his normal duties.

Italy: The promises are not enforceable. While Italian law recognizes that one who performs a natural obligation cannot reclaim his performance, it does not accept the doctrine that a promise to pay a natural obligation is enforceable absent compliance with the formalities applicable to gifts. Moreover, although the Civil Code accords special treatment to ‘remunerative gifts’ (which are motivated by gratitude or a desire to compensate for past services) and ‘liberalities according to usage’ (which are out of proportion to the value of such services), it does not dispense with the formalities in these cases either. Gino Gorla believes that promises to pay for services received are enforceable if the services have a monetary value and the amount promised is proportionate to their value, but this doctrine has not yet been accepted by the courts or by other scholars.

Austria: Both promises would be enforceable as promises to perform a natural obligation. Alternatively, in Case 2(a) in which the promisor is rescued, the rescuer may be a negotiorum gestor since he acted in a situation of urgency for the other party’s benefit without time to consult him. If so, the promise could be enforceable as the settlement of the claim which a negotiorum gestor has even absent a promise. In Case 2(b), in which the promisor’s adult child is rescued, it is harder to apply this theory since the promisor himself has received no benefit. It is hard to apply it even in Case 2(a) if the promisee is a professional rescuer since then he is performing a prior legal duty.

Germany: The formalities required for gifts are also required when promises are made in fulfilment of a moral obligation.

86 the enforceabilit y of promises

In Case 2(a), in which the promisor is rescued, the rescuer may have a claim for Geschäftsführung ohne Auftrag (the German negotiorum gestio) and, if so, the promise would be enforceable if it were interpreted, not as a mere expression of gratitude, but as an acknowledgment of this claim. In Case 2(b), in which the promisor’s adult child is rescued, there would be no such claim since the promisor himself did not benefit, and so the promise would not be enforceable. In Case 2(a), there would be no such claim if the rescuer were a professional performing a prior legal duty, and so, again, the promise would not be enforceable.

Greece: It has been argued that the normal formalities for gifts do not apply to promises to fulfil a moral obligation. If so, the promises are enforceable, but the question has not yet been resolved.

Scotland: The promises are not enforceable unless made with the normal formality.

England: Unless the rescue was performed at the promisor’s request, the promises are not enforceable because they neither have consideration nor are made by deed (‘under seal’).

Ireland: Unless the rescue was performed at the promisor’s request, the promises are not enforceable because they neither have consideration nor are made by deed (‘under seal’).

Preliminary comparisons

Promise to perform a natural obligation: Some systems enforce informal promises to perform a so-called ‘natural obligation’. The French, Belgian, and Austrian reporters believe that their courts would enforce the promises in Case 2 on that ground, although in France the promisor has the evidentiary problem that he must produce a writing or show that it was morally impossible to obtain one. The Greek reporter believes her courts might enforce the promises on these grounds. Although there is no clear authority in the Netherlands and Spain, the reporters from these countries are more doubtful, the Dutch reporter because his courts have held that promises to pay for past services are gifts, the Spanish reporter because her courts have recognized natural obligations primarily in the context of family relationships. In Italy, courts and scholars have not accepted the doctrine that informal promises to perform natural obligations are enforceable although one scholar, Gino Gorla, believes that they should be. This doctrine is not recognized in Germany, Scotland, England or Ireland.

The Belgian and Spanish reporters thought that their courts would be

less likely to enforce the promise in Case 2(b) on this ground since the rescue benefited, not the promisor, but his adult child.

Donación remuneratoria: In Spain, many scholars believe that an informal promise to make a donación remuneratoria is enforceable, that is, a gift to compensate the donee for services rendered for which the donor is not legally required to pay. If the courts recognize that doctrine, these promises might be enforced. In Portugal, however, a promise to make such a gift (doaçao remuneratória) is subject to the same formal requirement as other promises of gifts: it must be made in writing.

Convention d’assistance: In France, possibly, the promises may be enforceable because the act of rescuing will be considered an ‘offer’ which was tacitly accepted, thereby forming a ‘contract of rescue’ (convention d’assistance).

Negotiorum gestio (gestion d’affaires, Geschäftsführung ohne Auftrag): The Portuguese, Austrian, and German reporters thought it possible (though not likely, in the Portuguese reporter’s opinion) that the rescuer might have a claim even absent a promise because he performed a service that was urgently needed when there was no time to ask if it was wanted. If so, then the promise could be enforced if it were interpreted as an acknowledgment or settlement of this claim. This theory could not be applied, or only with difficulty, in Case 2(b) where it was not the promisor who was rescued but his adult child. It could not be applied where the rescuer was performing a prior legal duty, for example, because he was a professional doing his job. The French reporter noted that the theory would not work in France because French law imposes a duty to rescue on everyone, and therefore every rescuer is performing a legal duty.

Prior request: In England and Ireland, the rescuer might recover if the rescue were performed at the promisor’s request even though the promise was made afterwards, but, as both reporters noted, on the facts of the case, it is not likely that a prior request was made.