142 the enforceabilit y of promises

that, whichever direction the law moves in, English courts will introduce change relatively gradually in this area. For example, it is unlikely that an English court would extend now the reasoning of the cases dealing with the negligent provision of promised services to cases of non-delivery of promised goods or money.

There is no discussion in the reported cases as to whether the bailee’s reason for changing his mind should matter in respect of any of the possible bases for Charles’ liability. It might be presumed, therefore, that such factors are irrelevant, but the lack of recent cases in point, and the general confusion in the law in this area, makes it difficult to be certain. Finally, in respect of potential tort liability no distinction appears to have been drawn in the law between different classes of bailees, although if Charles is merely a friend of Otto it might be found that his promise lacked the required intent to create legal relations (see Case 1).

ireland

This is not a binding promise, as there has been no formal contract by way of a deed under seal, and Otto has given no consideration in exchange for Charles’ promise to store the valuable antique table and chairs. Charles’ offer to store Otto’s furniture without reward could, however, come within the meaning of a gratuitous bailment where Charles actually acquires the furniture. A gratuitous bailment is one from which only one party benefits. In this example, Otto, as bailor, would clearly benefit from the transaction while Charles, as bailee, would not. Recent case law repudiates the notion of a gratuitous bailment as a contractual relation, and Palmer defines bailment as a legal relationship which, while frequently arising from contract, can exist independently thereof.80 Recent authorities suggest that a gratuitous bailment may disclose no possible action in contract but gives rise to purely tortious remedies.81

Treitel provides that in the case of a bailment for the benefit of the bailor such as in the instant case, Charles’ only duty to Otto is that imposed by law. Where Charles promises to do anything which goes beyond the duty imposed by the law (for example, to keep the chattel in repair), Charles would be bound by this promise only if Otto had provided some consideration for it apart from the delivery of the chattel.82 It is clear that the mere promise by Charles to store the valuable antique table and

80See Palmer, Bailment, ch. 1.

81See ibid., ch. 11. See also Walker v. Watson [1974] 2 NZLR 175.

82See Charnock v. Liverpool Corporation [1968] 1 WLR 1498.

chairs would be unenforceable in contract under Irish law. However, once the chattels are actually acquired by the bailee he may then become liable with respect to his promise in tort.

As gratuitous bailee, Charles’ liability to Otto arises only where Charles actually acquires the furniture.83 Where Charles refuses to store the furniture before it is delivered, his promise to store the goods would be unenforceable. Otto has provided no consideration for Charles’ promise to store the furniture, and he would not be liable in contract to Otto. However, it would appear to matter considerably if Charles refuses to store the furniture after it is delivered. Charles might then be liable to Otto in tort for the storage of the chattels in accordance with his promise.84 The Irish courts have affirmed that liability may arise between parties where there is no contract between them and further, that the existence of a contract between the parties does not mean that there can be no liability in tort.85

In ascertaining whether a promise is binding, if Charles was a friend of Otto, that fact would present difficulties in establishing contractual intention on the part of Charles. Where Otto has provided no consideration, the promise is unenforceable. The enforceability of a contract will depend in part upon proof that a legally enforceable agreement was intended.86 The fact that Charles was a friend would indicate that the promise was merely a social arrangement and that there was an absence of contractual intention on the part of Charles.87

If Charles was the antiques dealer from whom Otto recently purchased the table and chairs, then there is still no consideration, and such a promise amounts to past consideration and is unenforceable.88 If, however, Charles promised to store the furniture for three months without charge as consideration or as part consideration for Otto’s purchase of the table and chairs, then such a promise could amount to sufficient consideration for the purposes of making a binding contract because it was not intended to be gratuitous.89

In ascertaining whether Charles’ promise is enforceable, his reasons in refusing to store the furniture are irrelevant. Charles’ promise is unenforceable because there has been no consideration provided by Otto and the promise was not made by way of a deed under seal. As stated earlier, where Charles actually receives the furniture he may then become liable

83See Palmer, Bailment, ch. 9; Roufos v. Brewster and Brewster [1971] 2 SASR 218.

84See generally B. M. E. McMahon and W. Binchy, Irish Law of Torts, 2nd edn (1990).