Summaries

and unforeseen circumstances because that doctrine is not recognized in France.)

If he is not liable in contract, it is unlikely that he will be held liable in tort because breaking the promise will not be held to constitute fault. Belgium: There is no liability if the parties did not intend the arrangement to be legally binding, as they may not have, if Charles was a friend.

If they did, then, if the furniture has been delivered, a contract of deposit is formed upon delivery, and Charles is liable for its breach.

If the furniture has not been delivered, the arrangement would not be a contract of deposit but a promise to enter into such a contract. Nevertheless, it would still be enforceable and subject to the same rules.

If Charles is liable in contract, the fact that he needs the space to store the furniture he has inherited may excuse him. Supposedly, the doctrine of force majeure requires that the obstacle to performance be insurmountable. But Belgian courts have applied that doctrine in cases in which a performance was simply more difficult. He cannot obtain relief under the doctrine of imprévision or changed and unforeseen circumstances because that doctrine is not recognized in Belgium.

The Netherlands: There is no liability if the parties did not intend the arrangement to be legally binding, as they may not have, especially if Charles was a friend. Whether Charles gave up the opportunity to store his furniture elsewhere is relevant to whether they did.

If they did, under the new Civil Code, there is a contract of deposit whether or not the furniture has been delivered.

If there is a contract of deposit, the fact that Charles needs the space to store the furniture he has inherited may excuse him since the court may change the moment at which the things deposited may be returned if he has an ‘important reason’.

Because the contract is gratuitous, the rules that usually govern liability may be relaxed.

Spain: If the furniture has been delivered, a contract of deposit is formed upon delivery, and Charles may be liable for its breach.

If the furniture has not been delivered, the arrangement would not be a contract of deposit but a promise to enter into such a contract. It is not clear whether such a contract is enforceable, though some scholars believe that it is.

If there is a contract of deposit, the fact that Charles needs the space to store the furniture he has inherited may excuse him because he can return the things deposited before the time agreed if he has a ‘fair motive’. Portugal: There is no liability if the parties did not intend the arrangement

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to be legally binding, as they may not have, especially if Charles was a friend.

Otherwise, if the furniture has been delivered, a contract of deposit is formed upon delivery, and Charles may be liable for its breach.

If the furniture has not been delivered, the arrangement would not be a contract of deposit but a promise to enter into such a contract. It is not clear whether such a contract is enforceable, though most scholars believe that it is.

If there is a contract of deposit, the fact that Charles needs the space to store the furniture he has inherited would probably excuse him because he can return the things deposited before the time agreed if he has a ‘fair reason’.

Italy: If the furniture has been delivered, a contract of deposit is formed upon delivery, and Charles may be liable for its breach.

If the furniture has not been delivered, the arrangement would not be a contract of deposit but a promise to enter into such a contract. Such a promise is not enforceable unless it is in the economic interest of the promisor since it lacks a causa. Some say it is not enforceable because it was not intended to be legally binding. The promise would be enforceable if the promisor did have an economic interest: for example, if he were an antiques dealer or a professional storer of furniture who made the promise for publicity.

One scholar, Gino Gorla, applying what he calls the doctrine of ‘just’ or ‘reasonable’ causa, believes that whether such a promise is enforceable should depend on balancing the harm the promisee would suffer from non-performance and his reliance on it against the cost to the promisor of keeping it and his own good or bad faith and reasons for refusing to perform.

Some scholars have said that a promisee can recover for opportunities that are lost and harm that is caused by relying on a promise that is not legally binding, but whether he can is controversial.

Some scholars think that in a case like this, the promisor would be liable if he failed to show good faith in pre-contractual negotiations. They would treat the promise to take a deposit as part of the negotiations towards a contract of deposit. To be liable, Charles would have to have acted in bad faith.

Austria: There is no liability if the parties did not intend the arrangement to be legally binding, which is unlikely if Charles is a friend, and likely if he is an antiques dealer or professional storer of furniture. Whether Otto

gave up the opportunity to store his furniture elsewhere is relevant to whether they did.

If they did, and the furniture has been delivered, a contract of deposit is formed upon delivery, and Charles may be liable for its breach.

If the furniture has not been delivered, the arrangement would not be a contract of deposit but a promise to enter into such a contract. It is nevertheless enforceable.

According to a provision of the Civil Code, if the contract is a promise to enter into a contract of deposit, relief can be given if circumstances have changed. Nevertheless, in Austrian contract law, any contract can be invalid for changed and unforeseen circumstances. Moreover, according to another provision of the Civil Code, in a contract of deposit, the things deposited may be returned before the time fixed if, due to unforeseen circumstances, the depositee is unable to store them safely or without harm to his own interests. Consequently, whether or not a contract of deposit has been formed, the fact that Charles needs the space to store the furniture he has inherited will excuse him.

Germany: Whether or not the furniture has been delivered, the parties have entered into a contract of deposit.

The fact that Charles needs the space to store the furniture he has inherited will excuse him if it constitutes an ‘important reason’ for returning the furniture before the date fixed. A court will weigh the burdens to the parties and take into account the fact that the contract was gratuitous.

Greece: There is no liability if the parties did not intend the arrangement to be legally binding, as they may not have if Charles was a friend.

If they did, and the furniture has been delivered, a contract of deposit is formed upon delivery, and Charles may be liable for its breach.

If the furniture has not been delivered, the arrangement would not be a contract of deposit but a promise to enter into such a contract. The leading opinion is that it is enforceable, though some scholars claim it is not.

The fact that Charles needs the space to store the furniture he has inherited will excuse him. He is entitled to return the things deposited before the time agreed if, due to ‘unforeseeable events’, he cannot keep them ‘safely and without prejudice to himself ’.

Scotland: There is no liability if the parties did not intend the arrangement to be legally binding, as is likely if Charles was a friend.

If they did, then, since the promise is a gratuitous undertaking, unless Otto has relied upon it, it is unenforceable because it was not made in

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writing. It is enforceable if Otto relied upon it with the knowledge and acquiescence of Charles in a way that was material and harms him materially if the promise is not kept. Accordingly, Charles is liable in Cases 5(d) and 5(e) where Otto has foregone the opportunity to store the furniture elsewhere.

If the promise is enforceable, the fact that Charles needs the space to store the furniture he has inherited will not excuse him. The doctrine of frustration in Scots law is too strict.

England: There is no liability if the parties did not intend the arrangement to be legally binding, as they may not have if Charles is a friend.

If they did, then, if the furniture has been delivered, the arrangement is a ‘gratuitous bailment’ which English law calls a depositum or mandatum. It is subject to special rules, although there is no agreement whether the rules arise in contract or tort or are sui generis. For example, the bailee is subject to certain duties as to the care of the goods. It is not clear whether he is bound by a promise to store them for a fixed period of time. The promise could not be enforced on general contractual principles since it lacks consideration. Sometimes, however, courts have enforced promises ancillary to a bailment that impose duties greater than those imposed by the relation itself.

If the furniture has not been delivered, there is no bailment, and the promise is not enforceable because it lacks consideration. It is possible, however, especially if Otto has been harmed by relying on the promise, that a court would invent consideration by finding some benefit to Charles, but courts were more likely to do so in the past than they are today.

Also, Charles might be liable in tort. Normally, one cannot recover in tort for pure economic harm, but exceptions have been made for negligent provision of services where the plaintiff has a ‘special relationship’ with the defendant. For there to be one, the situation must be ‘close to contract’ or the defendant must have ‘assumed responsibility’ for the plaintiff’s economic welfare, and typically the defendant has acted in a professional role, for example, as a solicitor or banker. While a court would not find there to be such a ‘special relationship’ if Charles were a friend, it might if Charles were an antiques dealer or a professional storer of furniture. Even then, a court might not hold him liable because he did not act negligently but failed to act at all, although this distinction is of dubious value. Otto would be more likely to succeed if the furniture had been delivered, since the relationship then seems closer and the case less like mere enforcement of a promise.

It does not matter why Charles refused to store the furniture.