Case 4: a promise to come to dinner

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arrangement than a legal one.1 As such it could be outside the bounds of contract law on the grounds that there is no animus contrahendi.

The actual case law reflects a certain amount of hesitation. The fact that the service is provided free does not stop a court from holding that a contract exists.2 The more recent cases ask whether the parties intended to contract, for example, when one of them gave the other a lift in his car. As a result, where such an intention is absent, courts tend to use liability in tort to provide compensation for a loss.3

In this case, liability in tort would be possible only if the conservatory could fulfil the three conditions set out in art. 1382: fault, harm, and a causal connection between the two (see Case 1). In our view, the conservatory will find it difficult to show fault in view of the social context in which the promise was made. Consequently, it may be that Carlo was simply performing what P. Jourdain calls an act of courtesy4 for which he is not liable. However, the matter is open to debate, and such questions are decided purely on a case-by-case basis.

belgium

There is certainly an agreement here but it is not clear that there is a contract imposing obligations that are legally enforceable. For there to be such a contract, the parties must have intended to be legally bound. Such a contract is to be distinguished from a family or social engagement or courtesy promise which, most likely, was all that Carlo made here.5

1B. Oppetit, ‘L’engagement d’honneur’, D 1979, Chr. 106; A. Viandier, ‘La complaisance’, JCP 1980, I, 2987; J. Carbonnier, Flexible droit, textes pour une sociologie du droit sans rigueur,

5As had already been noted by R. J. Pothier, Traité de droit des obligations (Paris, 1761), reprinted in M. Dupin, Oeuvres de Pothier (Paris, 1829), 2–3: ‘The sort of convention, the object of which is to form an engagement, is what one calls a contract: a convention by which two parties reciprocally promise and commit themselves toward the other to give him something or to do or not to do something. I said promise and commit oneself toward the other: there are other promises, that we make in good faith, and with the actual intention of complying with them, but without intent to give the promisee the right to request enforcement. This happens when the promisor declares at the time of his promise that he nevertheless does not want to commit himself; or when it so appears

Assuming that the parties intended to be bound (though, at first glance, it seems they did not), this case involves a unilateral contract in the civil law sense of the term: a contract in which only one party – here Carlo – incurred obligations, rather than both parties (see art. 1103 of the Civil Code). It is also a contract intuitu personae, meaning that performance by Carlo personally is an essential element which induced the other party to consent. Such a contract is perfectly valid, and Carlo would be liable for non-performance.

the netherlands

Carlo is not liable to the conservatory either in contract or in tort.

There was no contract. The parties did not intend their agreement to have any legal effect (art. 3:33 of the Civil Code6), nor was the conservatory justified in relying on Carlo (art. 3:357). The agreement was a mere social agreement.8 Therefore, Carlo will not be liable in contract.

Carlo’s conduct does not amount to an unlawful act (art. 6:162 of the Civil Code9). Though perhaps morally reprehensible, it is not forbidden by

from the circumstances or from the qualities of the promisor, and from the promisee. For instance, when a father promises to his son, who studies law, to give him what is necessary, at vacation time, to undertake some recreation travelling so that he would make the best use of his time, it is obvious that the father, in making such promise, did not intend to commit himself toward his son in a contractual engagement.’ For Belgium, see Cass., 2 Dec. 1875, Pas., 1876, I, 37 (holding that no legal obligation arose among the members of a de facto non-profit musical association absent an intention to do so, the association having been created merely for the musical entertainment of its members); Cass., 9 May 1980, Pas., 1980, I, 1127; De Page, Traité élémentaire, vol. II, no. 447: ‘Finally, a contract, like any act of will aimed at producing a legal effect, requires an animus contrahendae obligationis, an intention to produce legal effects. When such an intention does not exist . . . there is no contract . . .’ W. Van Gerven, Algemeen deel. Beginselen van Belgisch Privaatrecht (1969), no. 102 (translation): ‘Furthermore, the will must be directed toward producing legal effects. There is an understanding that mundane and social commitments and agreements (such as, for instance, an agreement to appear as a speaker before one or another circle) will not . . . provide a sufficient basis to constitute a legally binding commitment.’ J.V., note under Cass., 11 Jan. 1978, Pas., 1978, I, 530–1.

6Article 3:33 of the Civil Code: ‘A juridical act requires an intention to produce juridical effects, which intention has manifested itself by a declaration.’

7Article 3:35 of the Civil Code: ‘The absence of intention in a declaration cannot be invoked against a person who has interpreted another’s declaration or conduct, in conformity with the sense which he could reasonably attribute to it in the

circumstances, as a declaration of a particular tenor made to him by that other person.’ 8 See Asser/Hartkamp, vol. II, no. 13.

9Article 6:162(1): ‘A person who commits an unlawful act towards another which can be imputed to him, must repair the damage which the other person suffers as a consequence thereof.’

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law. In particular, it does not seem to be a violation of ‘a rule of unwritten law pertaining to proper social conduct’ (art. 6:162(2) of the Civil Code10) (see Case 6). Therefore, although the matter is less clear on the facts given here, since much depends on the circumstances of the case, Carlo will probably not be liable in tort.

spain

In this case the promise is made causa donandi, if it has any causa at all. There is a presumption of law that a causa exists (art. 1277 of the Civil Code). Therefore, Carlo is not under any obligation because the promise has not been given in writing (see Case 1). Since there is no prior duty, the conservatory is not entitled to compensation.

portugal

Probably, the conservatory cannot recover against Carlo.

In Portuguese law, the acceptance of an invitation to dinner generally does not constitute a contract, because the matter merely concerns social rules, not legal rules. These agreements are considered to be mere gentlemen’s agreements which do not constitute legal obligations because the promisor has no intention of assuming a legal obligation.11

Nevertheless, if Carlo had assumed a legal obligation to attend the dinner, then he would have entered into a contract to perform a service (art. 1154 of the Civil Code). It would not be a contract of donation because it does not entail any sacrifice of his assets. According to the law, a contract to perform a service is binding even if it was gratuitous and made orally. The conservatory would have therefore had a claim against Carlo, and it would be theoretically possible to demand compensation for nonperformance of Carlo’s obligation (art. 798 of the Civil Code). In my view, however, it would be very difficult to convince a judge that the mere acceptance of an invitation in a situation like this involved an intention to assume a legal obligation to perform the service of attending the dinner.

italy

The conservatory would not be able to recover anything under Italian case law. This case illustrates the uncertain border between ‘courtesy promises’

10Article 6:162(2): ‘Except where there is ground of justification, the following acts are deemed to be unlawful: the violation of a right, an act or omission violating a statutory duty or a rule of unwritten law pertaining to proper social conduct.’

11See M. de Andrade, Teoria Geral da Relação Jurídica, vol. II (1992), 31.