Case 5: promises to store goods without charge

that it is not made in return for compensation (art. 1917 of the Civil Code). This rule must be understood in conjunction with arts. 1927–8 of the Civil Code which reduce or increase a depositee’s liability depending on whether or not the deposit is for compensation. Article 1927 sets out the general rule that a depositee must look after the object with the same degree of care as he takes with his own things. Exceptions are created by art. 1928: a depositee is held to a higher standard of care if (1) the depositee offered to take the object, (2) the depositee is being compensated, or

(3) the deposit is for the sole benefit of the depositee.

We will consider, first, Charles’ liability if the furniture has been delivered, and then his liability if it has not. In each case, we will consider the significance of his position as a friend, a professional storer of furniture, and so forth.

If the furniture has been delivered, then a contract of deposit has been formed. If Charles now refuses to store the furniture, he is clearly in breach of contract.

If Charles is a friend of Otto, Otto could, in theory, sue Charles successfully to enforce his promise. It is unclear, however, if he could obtain specific performance: that is, compel him to keep the furniture until the end of the term. A depositee’s obligations constitute an ‘obligation to do’ something under art. 1126 of the Civil Code. Originally, art. 1142 was supposed to permit only a damage remedy for breach of such an obligation. The case law has interpreted this article narrowly, and a court will now order specific performance unless it constitutes an infringement of the personal liberty of the promisor. The exception has thus reversed the rule. Nevertheless, because the obligation to look after an object requires active cooperation by the depositee, it may be considered dangerous to order an uncooperative depositee to perform. In addition – and this argument is, in our view, more convincing – a court is not likely specifically to enforce a promise between friends, particularly since that result seems unwarranted or excessive in view of the gratuitous nature of the contract.

Moreover, Otto may not be able to claim damages from Charles on the grounds that the promise is like a gentlemen’s agreement and not intended to have legal effect. Indeed, not all deposits are contracts. Sometimes they are characterized as a mere arrangement.1 In addition, as mentioned already, according to art. 1927 of the Civil Code, the obligations of the depositee vary depending on the type of deposit in question.

1For example, a barman who agrees to look after a client’s bag, Com., 25 Sept. 1984, Bull. civ. IV, no. 242; a vendor who allows its suppliers to stock goods in its premises in order to carry out deliveries, Civ. 2, 25 April 1968, Bull. civ. II, no. 115; Collart-Dutilleul and Delebecque, Contrats no. 795, pp. 662 ff.

would not give rise to damages. First, where, as here, the contract of deposit is without compensation, it is unclear whether damages can be obtained for its breach although they probably could otherwise.3 Second, as discussed earlier, if Charles is a friend, it is quite possible that the promise would not be characterized as a contract but as a social agreement. Again, Otto could not obtain damages. As before, even if Charles is a professional storer, as long as he agreed to act gratuitously, his promise would probably be characterized in the same way. Again, Otto could not obtain damages.

It is also possible that purely consensualist principles would not be applied, and Charles’ offer would not give rise to a contract. Those who stress the in rem nature of a contract of deposit might conclude that no contract can be formed because an essential element is missing. Their conclusion would follow from a narrow interpretation of art. 1919 of the Civil Code, and would represent the more traditional view of deposit contracts. By this analysis, because the formal requirements to make a contract of deposit have not been complied with, there is merely an exchange of promises which fails to constitute an enforceable contract.

Even if, by this approach, there is no contract, Charles could, nevertheless, be liable for breach of his promise if the conditions are met that are required for liability in tort. Liability in tort would be possible only if breach of the promise were considered to be a fault under art. 1382 of the Civil Code.4 Intuitively, we think it extremely unlikely that failure to fulfil such a promise would constitute a fault. The transaction is not an exchange. The only benefit from the deposit is a unilateral gain by Otto. Common sense suggests that since Charles gets nothing from the arrangement, his liability should be diminished. Thus the considerations of fairness that have led courts to impose liability in tort in other cases are not present here.

In any event, if Charles’ promise was legally binding for any of the reasons just discussed, his reasons for breaking the promise, however good they might be, would not discharge his liability under French law. In particular, the mere fact that the performance of the contract will cost him money would not be a sufficient reason. It would do so only if this extra cost constituted force majeure under the rules of art. 1148 of the Civil Code.5

3 Terré, Simler, and Lequette, Les obligations no. 141, p. 123; M. N. Jobard-Bachelier, RTDCiv. 1958, 1 f.; M. Storck, Juris Classeur, Promesse synallagmatique de contrat, Fasc. 30, nos. 35 f.

4 See Cases 1 and 4 for an explanation of these conditions.

5Article 1148: ‘There are no damages when, as a result of force majeure or an accident, the debtor under an undertaking is prevented from transferring (donner) or doing that which he was obliged to do, or had done that which he was forbidden to do.’

122 the enforceabilit y of promises

The classic interpretation of this article requires three conditions to be met for an event to constitute force majeure: it must be unforeseeable, impossible to resist, and external to the will of the parties. The mere fact that it is more costly to store the furniture does not amount to force majeure according to the case law.6 Force majeure will only be a defence if there is a complete obstacle to performance, for then the adage applies that ‘no one is obliged to do the impossible’. In addition, the fact that performance is more costly does not meet the second condition that the force majeure is impossible to resist.

In any event, the possibility that Otto chose one friend, Charles, instead of another, Jean, has no bearing on the enforceability of his promise. Neither does the possibility that he had previously contracted with a warehouse to store his furniture, had cancelled the contract because of Charles’ offer, and now can only store his furniture at a higher price. At most, this possibility raises questions about the quantum of damages, or perhaps mitigation, both of which are beyond the scope of our topic.

The interesting and tricky problem raised by this case shows the importance of whether a contract is characterized as in rem. Paradoxically, in French law, the prevalence of consensualist principles tends to undercut the traditional requirement for the delivery of the thing. This case therefore underlines a particularity of French law: the possibility, admitted by some academics and courts, of an enforceable contract that consists of mere promises to contract (see also Cases 7 and 13). Notwithstanding debates over formal requirements, this case also illustrates the borderline between contracts with or without compensation. In our view, this characteristic feature – whether the contract is gratuitous or not – matters the most, whichever of the various ways just described one attempts to resolve the problem. Article 1917 characterizes a deposit as ‘a contract [that is] essentially gratuitous’. The influence of this characterization still permeates French law’s view of this contract.

The case also illustrates another characteristic of French law. The border between contract and tort seems rigid: for example, it is impossible to cumulate the causes of action. Nevertheless, the failure to characterize a situation as contractual does not preclude a party who has suffered a loss (the promisee) from obtaining a remedy. It may still be possible to obtain damages in tort for breach of the promise. Indeed, because the grounds for imposing liability in tort are so extensive in French law, many academics

6Civ., 4 Aug. 1915, DP 1916, 1, 22; Soc., 8 March 1972; D 1972, 340; nor force majeure if the person obliged to perform can do so by substitution, even if it is more costly, Com., 12 Nov. 1969, JCP 1971, II, 16791, note M. Juglart and E. du Pontavice, first case.