and gratuitous legal obligations. Courtesy promises are made without the intention to be legally bound. They lack a causa and, therefore, are not enforceable.12

In this case, a court would find the arrangement to be a courtesy promise because the promisor has no clear and immediate economic interest in promising, and the intention of the parties to be legally bound is not apparent. It would have been quite different if the parties, for example, had agreed upon a penalty clause.13

In situations of this type, the courts usually say that courtesy promises have no economic value or that they are too indeterminate to be enforceable.14 The best reason for refusing to enforce them, however, is that the parties to them do not want to be legally bound. Enforcement of their promises is left to informal – but often very effective – mechanisms of social sanction.

The distinction between gratuitous promises and courtesy promises originated in the work of legal scholars. Today, Italian case law distinguishes sharply between courtesy transportation and the contract of gratuitous transportation. The former is governed by general rules of tort liability. As in all other courtesy relationships, the courtesy carrier has the duty not to suspend performance abruptly so as to cause the other party damage. The latter, however, is a contract and is governed by the general rules of contract law.

austria

Not every promise results in a legal obligation. For a promise to be binding, the promisor must have the intention to be legally bound.15 In general, the acceptance of an invitation for a social event such as a dinner with friends does not constitute a legally binding promise. Such

12See F. Gazzoni, ‘Atipicità del contratto, giuridicità del vincolo e funzionalizzazione degli interessi’, Riv. dir. civ. I (1978), 52; F. Gazzoni, Manuale di diritto privato (1993); G. Ghezzi, ‘Cortesia (prestazioni di)’, Enc. dir. 10 (1962), 1048; V. Panuccio, ‘Cortesia (prestazioni di)’, Enc. giur. Treccani 6 (1988), 1–8; N. Lipari, ‘Rapporti di cortesia, rapporti di fatto, rapporti di fiducia’, Riv. trim. dir. proc. civ. (1968), 415.

13In this case it could be reasonable to assume that Carlo reserved his ‘right’ to change his mind according to the modifications in his schedule. See Marini, Promessa ed affidamento, 356.

14See Ghezzi, ‘Cortesia (prestazioni di)’. For the view that even a promise of a performance with no determined economic value could be legally binding, see F. Carresi, ‘Il contratto’, in Cicu-Messineo, Tratt. dir. civ. e comm. (1987), 18 ff.

15Even if he does not have such an intention, he can be bound if the promisee was entitled to understand the promise as a legally binding one because he could assume that there was such an intention.

110 the enforceabilit y of promises

invitations are purely social matters, where the parties do not intend to create a legal obligation.

Here, the situation is a bit different. The conservatory incurs costs not only for food but also for publicity. It therefore could be argued that the conservatory has an interest that Carlo’s promise is binding – an interest that Carlo must have recognized. I do not think, however, that this will be sufficient to credit him with an intention to be legally bound. One must take into consideration that it will not be in Carlo’s interest to make such a promise as he then could become liable for the damages caused by his failure to show up. As Carlo was not to receive any payment for the dinner, it cannot be assumed that he accepted such a liability without any payment. The conservatory therefore cannot understand his promise to be a legally binding promise. In other words, if it had wished to receive a binding promise, it should have explicitly asked for one.16

Carlo will not be liable in tort, either. As the conservatory suffers only a pure economic loss, Carlo could be liable only if he intentionally caused this loss by acting in a way which is against the bonos mores (Gute Sitten), as provided by § 1295 II of the Civil Code (ABGB). Section 1295 II could apply if Carlo made the promise with the intention of causing harm to the conservatory by not keeping the promise. This, however, does not seem to be the case.

germany

There would be a contractual claim for damages only if there was a duty to appear at the dinner. Only then could an obligation have been infringed. A binding obligation, however, must be distinguished from the mere promise of a favour which is not binding. For the contract to be binding, Carlo must have intended to be legally bound. German courts will assume he had this intention if the performance promised is of obvious importance to the promisee especially in view of the damage that non-performance might cause.

16Even if Carlo’s promise would constitute a legally binding promise, it is doubtful whether the conservatory could recover the costs incurred. If somebody fails to fulfil a contractual obligation, the other party has the right to demand the expectation interest. The costs the conservatory incurs, however, obviously are part of the reliance interest. Such costs can be recovered if they can be regarded as an indication of the expectation interest, as it can be assumed that a party incurs expenses only if they are covered by his contractual gain. This principle, however, works only in cases where it is clear that the creditor will make a financial gain from the contract. With respect to the conservatory, however, it is very doubtful whether there is – or could have been – a direct financial gain. See H. Koziol, Österreichisches Haftpflichtrecht, 3rd edn (1997), vol. I, no. 2/86.

This question is often hard to answer. In one case,17 the highest German court (Bundesgerichtshof) held that a promise to make a lorry driver available to another company was binding. The reason was the high value of the lorry. Therefore, the promisor had a contractual duty to select the driver carefully, and was held liable for damages when he failed to do so. In another case,18 however, the Bundesgerichtshof found that a promise to take care of a neighbour’s children was not binding. It was regarded as typical social behaviour.

The same difficulty appears in our case. On the one hand, it looks more like a favour. On the other hand, it was clear that the conservatory would incur expenses for the dinner. Nevertheless, in the case of a private dinner, one would not assume that a binding contract was made just because the host has bought food. Therefore, it seems most likely that there is no contractual claim here.

Another possibility is that the claim of the conservatory could be based on tort law. Section 826 of the Civil Code obligates a person to pay damages if he ‘has caused the damage intentionally and in a way which offends common decency’. Common decency is defined as the beliefs of those whose thinking is proper and just.19

Section 826 requires that the conduct in question be morally reproachable when all aspects of the case are considered.20 In our case, however, Carlo’s behaviour in refusing to turn down the opportunity to earn a large sum does not appear to be immoral, as we can see if we again imagine he did so when invited to a private dinner. The result would be different if Carlo never planned to fulfil his promise or if, for example, the conservatory sold entrance tickets for the dinner and now has to refund the money. Then Carlo’s behaviour would be immoral and against common decency. It would also be possible to find that he made a binding contract.

Carlo is under a legal obligation to notify the conservatory as soon as possible that he is not going to appear. But he has not infringed this obligation.

greece

We need to ask whether the parties are acting out of courtesy and do not wish to be legally bound or whether they wished to make a contract.

Probably Carlo and the private music conservatory are acting out of courtesy. Their promises do not have legal effects, as the parties do not

112 the enforceabilit y of promises

want to be bound legally. Someone who cancels a dinner held in his honour does not violate a legal, but rather a social obligation, and, therefore, he is not obliged to pay compensation for the financial damage which the host suffers because of the expenses he made.21

In an extreme case, non-performance of a social obligation could result in tort liability. The defendant would have to violate his obligation with the intention to cause harm in a way that is contrary to morality (art. 919 of the Civil Code).22

scotland

As Carlo has agreed to come to dinner, it is likely that the courts would adopt a contractual analysis, that is, he had accepted an offer from the conservatory. This would be consistent with the line of reasoning from cases such as Malcolm v. Campbell.23 The conservatory would then be able to establish the existence of the contract by parole evidence and sue Carlo for breach of it.

If, however, the problem was analysed in terms of a gratuitous unilateral obligation, once again the conservatory would prima facie require the promise to be constituted in writing: s. 1(2)(a)(ii) of the Requirements of Writing (Scotland) Act 1955.24 Carlo may attempt to argue that there is not a promise but an expression of future intention as in Gray v. Johnston,25 where the defender had merely indicated that he would render the pursuer his heir. However, the music conservatory may not require a written promise if the court took the view that Carlo made the promise in the course of his business, in terms of s. 1(2)(a)(ii) of the 1995 Act. This exception is new to the law of Scotland and there is no case law on the point as most business arrangements are bior multilateral contracts.

The conservatory could also argue that writing is not required in terms of s. 1(2)(a)(ii) of the Act as the promise is non-gratuitous in that Carlo receives the benefit of a dinner in his honour. As noted in discussing Case 1, it is only gratuitous unilateral obligations which are required to be constituted in writing in terms of the 1995 Act.

It could also be argued by Carlo that going to dinner is merely a social agreement and that therefore an agreement or promise to dine is presumed in Scots law not to create legal obligations. However, in light of his repute, it is likely that it will be seen as a business arrangement and therefore one where intention to enter legal obligations is presumed.

21 Karasis, ‘Social Engagement Acts’, in Miscellany in Honour of Andreas Gazis (1994), 207–25.