132 the enforceabilit y of promises

intention. If Charles is just a friend of Otto, the fact that Otto could have stored the furniture at a warehouse is not sufficient to make Charles’ commitment a legal one.35

germany

Deposit (Verwahrung, §§ 688–700 of the Civil Code) is a type of contract which obligates the promisor to provide a room for storage and to take care of the goods (§ 688). It is up to the parties to agree whether compensation will be paid or not (see § 689) but there is no requirement that it be. Even if the deposit is free of charge, such a contract is not deemed to be a gift. Consequently, no formality is required to enter into a deposit contract. It is not as dangerous for the promisor as the promise to make a gift. Therefore, § 518 of the Civil Code is not applicable (see Case 1), and the promise is binding without any formality.

Nevertheless, § 696 of the Civil Code36 gives Charles the right to give the things deposited back to Otto before the time agreed if he has an important reason. An important reason means that it is unreasonable for the promisor to have to continue to store them. Thus far, the courts have said little about the meaning of § 696. But one could think of clear cases in which the promisor would have an important reason: for example, if he loses the room (for example, due to a fire in Charles’ house), or becomes seriously ill, or if the goods in storage endanger the promisor or his goods, although even then he could not terminate the contract at a moment that would be inopportune given the consequences to the other party. Whether Charles has an important reason depends on weighing his interests against Otto’s. The unexpected inheritance could be an important reason depending on how serious the problems caused by the new situation are for Charles. This is especially true because Charles acted altruistically which means that his interests are even more important. If Charles merely changed his mind, he cannot refuse to store the furniture any more.

It does not matter if the furniture has already been delivered when Charles changes his mind except as it bears on the question of whether the moment is inappropriate. If Otto does not have any opportunity to store his furniture elsewhere, the moment is inappropriate. If he still has time enough to find another place, it is not.

As long as the service was meant to be free of charge, Charles’ profes-

35The same argument applies with respect to Case 5(d).

36The keeper can give the goods back at any time if no end to the period for keeping them is agreed upon. If such a time is agreed upon, he can only give the goods back before then if he has an important reason.

sion or his relationship with Otto does not matter. It is possible, however, that because of the previous contract, Charles has to take Otto’s interests more seriously into consideration.

Whether Otto has lost the opportunity to store the furniture with Jean or to store it with the warehouse at a lower price than he can now obtain matters only to the extent that it shows Otto’s own interests are important or that the moment Charles chose to terminate the deposit was inopportune.

greece

In Greek law, Charles and Otto wish to make a contract of deposit. This kind of contract is regulated by arts. 822–33 of the Civil Code. According to art. 822 of the Civil Code: ‘By a contract of deposit the depositary takes delivery from another person of a movable thing with a view of keeping it (safely) subject to the obligation to return it upon demand. A remuneration may only be claimed if this has been agreed or results from the circumstances.’37

In the present case, the contract is a unilateral one (see Case 1) because it is without remuneration and so it creates obligations only on the part of the depositary, namely, the obligations to keep the thing and return it upon demand (art. 827 of the Civil Code).38 Had remuneration been promised, the contract would be a reciprocal one which would be governed by arts. 374 and following of the Civil Code.39 Moreover, under the Greek Civil Code, the contract for deposit is based on a fiduciary relationship between the depositor and the depositary.40

In Case 5(a), Charles either refuses to store the furniture before it is delivered or refuses to do so a month afterwards. A contract for deposit belongs to the so-called delivery contracts which are concluded re. This means that, in addition to the consent of the parties, delivery of the thing is also required for the contract to be formed.41 Before delivery, the parties

37Article 822 corresponds to previous law which did not, however, recognize any remuneration for the depositary. A similar provision is contained in §§ 688 and 689 of the German Civil Code, 1915 and 1928(2) of the French Code, and 427 of the Swiss Code of Obligations; Kafkas, Law of Obligations, art. 822 CC.

38Kafkas, Law of Obligations, art. 822 CC; Kritikos in Georgiadis and Stathopoulos, Civil Code,

40Kritikos in Georgiadis and Stathopoulos, Civil Code, art. 882, no. 8; EfAth 1264/55 EEN 22, 933 (1955); Kafkas, Law of Obligations, art. 822 CC; Rammos in ErmAK art. 822 no. 6.

41The characteristic of ‘delivery’ in delivery contracts is that the obligation of the depositary to return the thing (and not the obligation of the depositor to deliver the thing to the depositary) may not be generated prior to the delivery of the thing; Stathopoulos, Contract Law, 40–1.

134 the enforceabilit y of promises

have, not a contract of deposit, but a preliminary agreement to deposit. The leading opinion is that such an agreement obligates them to enter into a contract of deposit.42 A party who refuses to do so can be forced to enter into the contract.43 While some deny that an agreement to deposit is enforceable, the leading view seems to be the right one. It is consistent with the principle of freedom of contract (art. 361 of the Civil Code). Such a contract can therefore be formed by mere consent, and delivery of the thing is the fulfilment of a contractual obligation.44

Thus, in Case 5(a), if the furniture has not yet been delivered, Charles can be forced to conclude the contract and to take delivery (art. 949 of the Code of Civil Procedure).45 If he refuses he will be liable for Otto’s positive or expectation interest (art. 343 of the Civil Code). The preliminary agreement is a full contract according to art. 166 of the Civil Code and liability is for breach of such a contract, not for pre-contractual conduct.46

If the furniture has already been delivered, then the parties have made a contract of deposit. If Charles refuses to store the furniture, he will also be liable for Otto’s positive interest according to arts. 343 and following of the Civil Code. The amount of compensation will be the same in both cases.

According to art. 828(1) of the Civil Code, Charles cannot insist that Otto take back the furniture before the end of the term on which they agreed unless some unforeseeable event has occurred.47 Section 1 provides: ‘A

42Kritikos in Georgiadis and Stathopoulos, Civil Code, arts. 822 ff.; Varthakokoilis, Analytical Interpretation, art. 822; AP 747/1979 NoB 28, 53.

43Kafkas, Law of Obligations, art. 822; D. Bosdas, ‘The Contract for Deposit’, HellD 20 (1979), 1.

44Filios, Law of Obligations, pars. 27–8; Karakatsanis, The Declaration of Will, 212 ff. The Swiss Code of Obligations characterizes the contract for deposit as a solo consensu contract.

45Some writers doubt whether resort to means of coercion are permitted because they destroy the fiduciary relationship between the depositor and the depositary; Bosdas, ‘The Contract for Deposit’.

46AP 261/1996 HellD 37, 1560 (1996); Varthakokoilis, Analytical Interpretation, art. 166.

47Moreover, the depositary cannot get rid of the thing by depositing it with a public body if the thing can be subject to a deposit with a public body (art. 427 of the Civil Code). The deposit with a public body is equivalent to the payment of a debt (art. 431). The debtor has the right to make a deposit with a public body only if certain requirements are met. These are that the creditor must be in default and the debtor insecure, and the object must be one that can be deposited. Furniture, according to art. 2 of the Presidential Degree 30.12.1926/3.1.1927, is not subject to deposit with a public body. Therefore, in this case, art. 428 of the Civil Code applies. It provides: ‘If the thing due is a movable, which does not admit of depositing, the debtor, after placing the creditor upon notice and advising him, may sell the thing by public auction and deposit the proceeds of sale with a public body. The advice to the creditor may be omitted if the thing is perishable and a delay would entail risks or if advising the creditor is particularly difficult.’ Sxinas in Georgiadis and Stathopoulos, Civil Code, art. 428.

depositary shall not be entitled to return the thing deposited before the lapse of the period fixed except if unforeseeable events make it impossible for him to keep further the thing safely and without prejudice to himself.’ Section 2 adds: ‘If no term has been fixed for safekeeping, a depositary may return the thing at any time.’ However, if the depositor recovers the thing, the contract is cancelled.48

In Case 5(b), it might matter if Charles is a friend of Otto. If so, one must ask whether there is a contract between them or a mere act of courtesy.49 If the parties do not intend to bind themselves legally but Charles is acting out of courtesy, he will not be held liable for refusing to store Otto’s furniture. Difficulties arise when no remuneration for the deposit has been agreed. The decisive issue will be the real intention of the parties. This issue will be decided ad hoc, taking into consideration all the circumstances such as the value of the thing deposited.50 Here, because of the value of the furniture, it seems probable that the parties intended a contract of deposit even if Charles is a friend of Otto. If so, he is liable.

If Charles is the antiques dealer from whom Otto recently purchased the furniture, their agreement might be an independent contract for deposit or an obligation secondary to the original contract of sale. In either case, the antiques dealer is bound by the contract and will be liable if he breaches for Otto’s positive or expectation interest under arts. 343 and following of the Civil Code.

Finally, if Charles is a professional storer of furniture, then the agreement is a contract for deposit, and Charles will be liable if he breaches for the reasons already given.

In Case 5(c), it does matter whether Charles refuses to store the furniture merely because he has changed his mind or because he has inherited furniture which he has no other place to store. If he merely changed his mind, as we have seen, he will be liable. If he inherited furniture he cannot store elsewhere, he is not. He falls within the provision of art. 828 already quoted which entitles the depositary to return the object even before the expiration of the time fixed if unforeseeeable events make it impossible for him to keep further the object safely and without prejudice to himself.

In such a case, however, Charles should, according to the principle of good faith (arts. 200 and 288 of the Civil Code), notify Otto in time for him to take back the furniture.51 If Otto refuses to do so, he will be in default

48Kritikos in Georgiadis and Stathopoulos, Civil Code, art. 828; Kafkas, Law of Obligations, art. 828.

49Karasis, ‘Gentlemen’s Agreement’, in Miscellany in Honor of Andreas Gazis (1994), 207–25.

50Kritikos in Georgiadis and Stathopoulos, Civil Code, arts. 822 ff.

51Ibid., art. 828, no. 6.