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depends on the condition that it is approved by the guardian.28 After the minor has come of age, he can approve of the contract himself, provided the guardian has not yet refused to approve it.29 If Ian’s guardian has not yet given his approval, Ian’s promise would be interpreted as a confirmation of the original promise. If Ian’s guardian had refused to approve the contract, there would remain no obligation that could be confirmed. It would therefore be necessary to conclude a second contract.

germany

Case 3(a) could not arise under previous German bankruptcy law because debts are not discharged. Therefore Ian would already be obligated to pay without the additional promise.

German bankruptcy law changed on 1 January 1999. Under the new law a debtor is free after paying his creditors as much as possible for seven years (§§ 287 and 301 InsO). After the seven years, though the creditor no longer has a claim, if the debtor pays, the debtor cannot demand the money back. The payment is not regarded as an unjust enrichment.

Ian’s promise is an acknowledgment of indebtedness which is an abstract obligation – abstract from the reason or causa30 for which it is made. If, in fact, there is no causa, the acknowledgment can be claimed back as an unjust enrichment (§ 812 of the Civil Code31). This enables a court to ensure that a person was really indebted originally.

An acknowledgment of indebtedness is valid only if it is made in writing (§§ 780 and 781 of the Civil Code32). The reason is to protect people from making such a promise without enough thought. This protection is

28The other party can ask the guardian to declare whether he accepts the contract or not. If he declines to make such a declaration within an appropriate period of time, the contract is invalid. See § 865 last sentence of the Civil Code.

29In this case the conclusion of a second contract is necessary.

30The transfer of property or another right is strictly distinguished from the obligation to transfer the right. The transfer needs an obligation as a causa. Otherwise it will be deemed to be an unjust enrichment which can be reclaimed (§§ 812–22 of the Civil Code). The same is true of abstract obligations such as an acknowledgment of indebtedness (§§ 780 and 781). Therefore, the performance of a promise cannot be reclaimed if the promise itself is a valid causa for the performance or if there is some other causa.

31The provision prescribes that every enrichment for which there is no causa must be repaid.

32Both provisions only impose the formality for the abstract obligation of an acknowledgment of indebtedness.

necessary because the acknowledgment changes the burden of proof when a claim of unjust enrichment is made.

Under the new bankruptcy law, this situation is comparable to a game or a bet because in both cases there is no legal obligation to pay. Nevertheless, a person who pays cannot demand the money back (§ 762(1) of the Civil Code). Therefore, it would be appropriate to apply § 762(2) in this situation as well. Section 762(2) provides that acknowledgments of indebtedness are not enforceable if the original ‘obligation’ arose from a game or a bet. Therefore, Anna cannot enforce the promise but if Ian pays he cannot claim the money back. This result is not absolutely certain because how the new law will apply has yet to be discussed by scholars.

In Case 3(b), the claim is time-barred. Such a claim does not cease to exist. Rather, the debtor has a defence that entitles him to refuse payment (§ 222 of the Civil Code33). In such a situation, even though the obligation is not enforceable, a promise to pay will be interpreted as a renunciation of the defence. Such a renunciation can be declared only after the claim was already time-barred.34 That is precisely what has happened in our case. Therefore, Anna can enforce the promise because Ian has lost his defence.

The result in Case 3(c) depends on the age of Ian at the time of the original contract and on whether his legal guardian had already refused to approve the contract.

If Ian made the original promise when he was between ages seven and eighteen and his guardian did not refuse to approve it, Ian can approve it himself because he is an adult now (§§ 10735 and 108(2) and (3) of the Civil Code). The promise he made as an adult can only be interpreted as such an approval, and Ian cannot withdraw it. Therefore, Anna has an enforceable claim.

If Ian concluded the original contract when he was younger than seven years or if his guardian refused to approve it, the contract is void (§ 104, § 105(1), § 108(2) of the Civil Code.) Therefore, he could no longer approve the original contract. His promise and Anna’s acceptance have to be interpreted as a new contract with exactly the same content. This new contract is valid unless one of the usual legal requirements is missing. This

33Section 222: ‘(1) The debtor is entitled to refuse payment of a claim which is time barred. (2) If he pays, he cannot demand the money back even if he did not know that the claim was time barred. This holds true for acknowledgments and collateral as well.’

34RGZ 78 (1912), 130; BGHZ 57 (1972), 204 (209).

35The promise of a minor is valid only with the approval of his legal guardian.

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question has to be answered from the perspective of the time when the new contract was agreed upon. If all these requirements were met, Anna would have an enforceable claim as well.

greece

In Case 3(a), Ian promises to pay a debt discharged in bankruptcy. According to the Greek law of bankruptcy, immediately after the adjudication of bankruptcy the creditors cannot claim their debts individually. Instead, they have to bring their claims in the bankruptcy proceedings.36 If they do not do that they still cannot proceed against the bankrupt individually, and their claims may eventually be barred by the passage of time. As soon as the bankruptcy proceedings end, the immunity of the bankrupt is over and the creditors can proceed individually to enforce their claims.37

In Case 3(b), Ian promises to pay a debt that is barred by the passage of time. In Greek law, with the passage of time, if the holder of a right takes no action, rights lose their force. This means that the right continues to exist but that the claim that stems from it is subject to prescription and can no longer be brought.38

Article 272 of the Civil Code39 provides: ‘Upon the term of prescription being completed the obligor has the right to refuse the performance of the undertaking. What has been paid in ignorance of the effect of prescription cannot be claimed back. A written acknowledgment made by contract in ignorance of the prescription of a claim that is extinguished thereby as well as the furnishing of security shall be valid.’ Under this provision, Ian’s promise would revive Anna’s claim only if he did not know that her claim was barred by the passage of time and only if he agreed to pay in a written contract.

Nevertheless, if the parties know that the debt has already been prescribed and Ian now promises to pay it, he has made what is termed a renunciation of the right of prescription. Such a renunciation can be made orally.40 Therefore, Ian is obliged to keep his promise to Anna.

In Case 3(c), the debt is void initially because a minor has incurred it.

36K. Rokas, Bankruptcy, 13th edn (1978), 136.

37In our law bankruptcy does not discharge claims unless there is a bankruptcy composition and the creditors have agreed to that. Ibid.

38Stathopoulos, Contract Law, 207.

39Georgiadis in Georgiadis and Stathopoulos, Civil Code, art. 272.

40Georgiadis, General Principles, 173–86; Thessaloniki Court of Appeal 1861/1993 HellD 37 (1996), 1436.

Therefore, Ian’s promise is deemed to be one made without a ‘cause’. For it to be the basis of a new claim, it would have to comply with art. 873 of the Civil Code,41 which provides:

A contract whereby a promise is given or a debt is acknowledged in such a manner as to give rise to an obligation irrespective of any consideration for the debt shall be valid if the promise or the declaration of acknowledgment were made in writing. A written promise or declaration of acknowledgment with no reference to consideration for the debt shall in case of doubt be deemed made for the same purpose.

The meaning of this article is that the written acknowledgment of the debt is valid even if the cause of the debt does not exist or is null. Thus, Ian will not be obliged to keep his promise if it was not made in writing.

scotland

Again, the important provision of the law of Scotland is s. 1(2) of the Requirements of Writing (Scotland) Act 1995, in terms of which the promise will only be enforceable if constituted in writing, as it is a gratuitous unilateral obligation.42 Therefore Anna can enforce the promise if it is in writing even if Ian changes his mind at a subsequent point. The circumstances in which the debt arose and could not legally be claimed are again an irrelevance in Scots law.

england

It is clear in English law that only the last of the three promises is enforceable. The reason the first and second promises are unenforceable is that no consideration was given in exchange for them (see Case 1). What Anna did for Ian, she did in the past; that is, her consideration was ‘past consideration’ (see Case 2). As noted in the discussion to Case 2, prior obligations that are not binding because of a specific legal defect have been held in certain cases to constitute valid consideration for a subsequent promise (under the misleading heading of ‘moral consideration’). The obligations described in Cases 3(a) and 3(b) were indeed considered at one time to fall into this category, and hence to be exceptions to the need for ‘fresh’ consideration,43 but these exceptions have since been overruled, and it is clear now that each promise is unenforceable: see, for example, Jakeman v.