Summaries

116 the enforceabilit y of promises

Spain: The promise will be treated as a gift and is therefore unenforceable without the necessary formality.

Portugal: Probably, the promise would be treated as a gentlemen’s agreement or a mere social obligation, and therefore would be unenforceable. Italy: Whether there is liability in contract depends on whether the parties intended to be bound legally, which they did not.

Austria: Whether there is liability in contract depends on whether the parties intended to be bound legally, which, most likely, they did not.

There would be liability in tort only if Carlo intended to cause harm in a way which is against the bonos mores (Gute Sitten), and here he did not cause harm intentionally.

Germany: Whether there is liability in contract depends on whether the parties intended to be bound legally. Most likely, they did not, although the question is hard to answer.

For there to be liability in tort, either Carlo’s refusal to attend the dinner must have been morally reproachable, which it was not, or he must have intended to cause harm, which he did not.

Greece: Whether there is liability in contract depends on whether the parties intended to be bound legally, which probably they did not.

For there to be liability in tort, Carlo would have had to cause harm intentionally in a way that was contrary to morality. Non-performance of a social obligation could give rise to such liability only in an extreme case.

Scotland: The promise may be a non-gratuitous one, in which case it is enforceable even if it is made informally. Or it may be a gratuitous one, in which case it is enforceable only if it is made in writing or given in the course of business. Here it may have been given in the course of business. In either case, it is enforceable only if it is intended to be legally binding. Although usually a dinner engagement is not so intended, here it may have been since it may have been regarded as a business arrangement.

Even if the promise was one that normally has to be in writing, it may still be enforceable because the conservatory relied on it. To be enforceable, the expenditure must have been known to and acquiesced in by Carlo, it must have been material, and the adverse consequences when Carlo did not come must have been material.

England: There is no liability in contract unless the parties intended to be bound legally, which, most likely, they did not, although the matter is not clear.

Even if they did, the promise is unenforceable because it lacks consideration although, in a sufficiently sympathetic case, a court might

manipulate the doctrine of consideration to hold a party liable on similar facts.

The doctrine of promissory estoppel does not make the promise enforceable because that doctrine is a shield, not a sword.

Ireland: There is no liability in contract unless the parties intended to be bound legally, which, most likely, they did not.

Even if they did, the promise is unenforceable because it lacks consideration. Organizing the dinner was more like a voluntary courtesy than something given in return.

The doctrine of promissory estoppel does not make the promise enforceable because that doctrine is a shield, not a sword.

Preliminary comparisons

The intention to be legally bound: In all of the legal systems, the promise is unenforceable unless the parties intended to be legally bound. Most reporters thought it unlikely that they did; some thought it possible; one thought it likely.

Tort: No legal system would impose liability in tort. Some reporters did not think this possibility worth discussing, and those that did said that Carlo was not at fault, or that his conduct was not contrary to morality, or that he did not intentionally cause harm.

Gift: In Spain and Scotland, the promise may be treated like a gift so that it would be binding only if it were made in writing, or, in Scotland, if it were given in the course of business.

Consideration: In addition, in England and Ireland, the promise would be unenforceable because it lacks consideration.

Reliance: Although England and Ireland recognize a doctrine of promissory reliance, the doctrine does not apply here because it is a shield, not a sword.