are in favour of abolishing the distinction as theoretical and impractical. Since the conditions for recovery in tort are relatively easy to satisfy, despite problems of evidence, to argue over the exact way to analyse a transaction as a contract may be a purely academic exercise.

belgium

This case involves a contract of deposit (contrat de dépôt) (arts. 1915 f. of the Civil Code). A contract of deposit is essentially a gratuitous agreement (art. 1917). In this case, it is also unilateral in the civil law sense of the term: it imposes obligations on only one of the parties. In addition, it is a ‘real contract’ (contrat réel or re) as opposed to a consensual contract (contrat consensuel) which means that it is formed and imposes obligations on the depositary only when the thing to be deposited is delivered to him (art. 1919).

In Case 5(a), if Charles refuses the furniture before delivery, no contract of deposit can be said to exist. Nevertheless, there is still a promise of deposit. The promise is perfectly valid, and the depositor can request either performance or damages.7 If Charles refuses to store the furniture one month after delivery, he will then breach his obligations under a contract of deposit that was formed by delivery and which obligates him to store the furniture for three months. It is quite true that, in the present state of Belgian law, the practical consequences attached to the breaking of a deposit contract and to the breaking of a promise of deposit may appear to be much the same. This seems to be an incidental effect of the modern recognition in Belgian law that the promise has binding force in advance of delivery and even if it has not been accepted by the promisee.

In Case 5(b), if Charles is Otto’s friend, the court will have to decide whether 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 may have been all the parties intended if they were friends (see Case 4).

In Case 5(c), Charles may refuse to store the furniture as long as no delivery has taken place. If Charles receives the inherited furniture unexpectedly subsequent to the delivery of Otto’s furniture, he may be able to escape his obligation to store it by claiming force majeure. Admittedly, the two elements necessary to establish force majeure are an insurmountable

7M.-F. De Pover, Répertoire notarial, principaux contrats usuels, vol. IX, De Pover, Le dépôt, no. 9. See also De Page, Traité élémentaire, vol. V, no. 183.

but also mere social agreements tend to be performed. The outcome is not totally certain, though. If Otto intended their promise to be legally binding, then, to establish whether he can rely on art. 3:35 of the Civil Code, it is relevant whether he relied on the promise.

Since a deposit is a consensual contract under the new code (see above), delivery of the object is not a prerequisite for its conclusion.

It does matter (Case 5(b)) if Charles was a friend of Otto’s, or the antiques dealer from whom he recently purchased the table and chairs, or a professional storer of furniture. If Charles was a friend of Otto’s, it is likely that the promise was not meant to be a legally binding promise (art. 3:33 of the Civil Code), and it is less likely that Otto could reasonably think it was (art. 3:35 of the Civil Code). If Charles was the seller, the promise may be a promise collateral to the contract of sale. It would therefore be binding. If Charles was a professional storer, and the promise was gratuitous, it is more likely that the promise was not intended to be a contractual promise (art. 3:33 of the Civil Code), and Otto could not rely on it being so unless he undertook to enquire whether it was (art. 3:35 of the Civil Code).9 Thus, these facts do make a difference although they may not be decisive. Other facts may lead to a different conclusion.

In deciding whether the arrangement was merely social or had legal effects, it does not matter (Case 5(c)) if Charles refused to store the furniture merely because he had changed his mind or because he had unexpectedly inherited furniture which he had no place else to store. If, however, the agreement is (part of) a legally binding contract, then these facts may constitute an ‘important reason’ (gewichtige reden) which allows the court to change the moment the objects may be given back (art. 7:605(2) of the Civil Code).10

One author has argued that when a promise is gratuitous, liability and enforcement should be relaxed.11 Such a general principle does not follow from the provisions or the travaux préparatoires of the new code – on the contrary.12 Nevertheless, it is not unlikely that in applying provisions like art. 7:605(2) of the Civil Code, possibly, though not necessarily, in connection with good faith (arts. 6:2, 6:248), the courts will take the gratuitousness of the promise into account.

9See also art. 7:601(1) of the Civil Code which says that in case the depositary is a professional he is entitled to remuneration.

10See art. 7:605(2) of the Civil Code: ‘The judge of the subdistrict court in whose jurisdiction the thing is located may, for serious reasons and upon the request of one of the parties, determine a date for returning or taking back which differs from the

126 the enforceabilit y of promises

It may matter (Case 5(d)) if Otto could instead have stored his furniture with Jean, who had also offered to store it without charge, and has now withdrawn that offer. If Charles knew of Jean’s offer, it is somewhat more likely that his own offer was intended to be legally binding. If Charles did not intend it to be but Otto thought that he did, Otto may have been somewhat more justified in relying on it. However, it does not seem to be sufficient to turn the agreement into a contract. The fact that Otto refused Jean’s offer is evidence that he actually did rely, but, as just noted, in itself it does not make his reliance any more justified.

If the agreement was intended to have legal effects, and therefore is enforceable, Jean’s offer is relevant as evidence of Otto’s damages.13

It does matter (Case 5(e)) if Otto 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. If he did, it is a strong indication that the promise was regarded by the parties (art. 3:33 of the Civil Code) and could be regarded by Otto (art. 3:35 of the Civil Code) as a legally binding promise rather than a mere social arrangement. Even then, however, the circumstances of the case may still lead to the conclusion that the promise was not a legally binding one.

spain

Here again, the promise is not enforceable unless it has a causa, and there is a presumption of law that it does (art. 1277 of the Civil Code). Presumably, the causa is mere liberality.

The problem then is that, in Spanish law, a contract of this type is a deposit (depósito). A deposit is a contract re which means that it does not create an obligation until after the object to be deposited is actually delivered (datio rei). After delivery, it is clear that a contract has been formed.

According to the Civil Code, if there is no delivery, there is no contract. Nevertheless, many scholars maintain that duties may arise before the delivery of the object.14 If so, then the existence of an offer and its acceptance would create an obligation to do what one has promised, although, according to the Civil Code, this obligation is not a contract.

The position of the Tribunal Supremo is not clear. There are cases in which physical delivery was not required. In one decision,15 a party had deposited 175,000 pesetas with a bank as part payment of 350,000 pesetas for the rental of a ship. He later argued that since the deposit with the bank