The doctrine of promissory reliance does not apply because it is a shield, not a sword.

Ireland: 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’. The prevailing view is that such an arrangement does not give rise to liability in contract (there being no consideration), but in tort. It is not clear whether this liability would extend to the promise to store the goods for a fixed time, since it was made without consideration and goes beyond the duties imposed by the relationship itself. If so, the damages awarded would be those sufficient to place Otto where he would have been had the tort not been committed.

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

The doctrine of promissory estoppel does not apply because it is a shield, not a sword.

Preliminary comparisons

The intention to be legally bound: Nearly all reporters noted that the promise is not enforceable unless the parties intended to be legally bound, and that it is less likely that they did if Charles is a friend.

The significance of delivery: In two civil law systems, a contract of deposit is formed whether or not the furniture has been delivered (the Netherlands and Germany). In seven civil law systems a contract of deposit is formed only upon delivery; before then, the arrangement is a promise to enter into such a contract. In two of these systems, such a promise is enforceable (Belgium and Austria); in two, it is enforceable according to the leading opinion (Greece) or that of most scholars (Portugal); in two it is uncertain whether it is enforceable (France and Spain); and in one it is not enforceable unless made in the economic interest of the promisor, as, possibly, if he were an antiques dealer or a professional storer (Italy). In the two common law systems (England and Ireland), if and only if the furniture is delivered, the arrangement is a ‘gratuitous bailment’ to which the normal rules of contract law do not apply. The promise to store the furniture for a fixed period lacks consideration; it is not clear whether a court would enforce it as a promise ancillary to a bailment. Absent delivery, the promise is not enforceable in contract or as ancillary to a bailment. In one system, the promise is not enforceable with or without delivery absent a writing or reliance (Scotland).

150 the enforceabilit y of promises

The significance of reliance: In Scotland, the promise would be enforceable if the promisee relied upon it materially, and would be materially harmed by its breach, if he relied with the knowledge and acquiescence of the promisor. In Italy, reliance might matter if one adopted either of two controversial theories: that the promisee may recover if he relied on a non-legally binding promise; or that he may do so if the harm to him outweighs that to the promisor. In each case, it would also matter if the promisor acted in good faith.

Tort: In England, it might be possible to recover in tort even though the harm is a pure economic loss if the parties had a ‘special relationship’. For there to be one, the situation must be ‘close to contract’ and, typically, the defendant must act in a professional role. Even then, the court might not impose liability since Charles did not act negligently but failed to act at all, although this distinction is of dubious value.

The significance of gratuitousness: In France, even if the promise is binding, recovery of damages may be difficult because the contract is gratuitous. Because it is, in the Netherlands the rules governing recovery may be relaxed. In Scotland, such a promise is unenforceable unless it is in writing or the promisee relied because it is gratuitous. In England and Ireland, if it were not gratuitous, there would be consideration.

Excuse: In six systems, even if Charles is bound contractually, he will likely be excused because of a specific provision in the civil code that a depositee can return the goods before the time fixed if he has an ‘important reason’ (the Netherlands and Germany) or ‘fair motive’ or ‘fair reason’ (Spain and Portugal) for doing so, or if, due to changed or unforeseen circumstances, he cannot store them without harm to his own interests (Austria and Greece). In Belgium, Charles may be excused on account of force majeure, even though performance has become more difficult rather than impossible. The reporters from France, Italy, Scotland, England, and Ireland concluded that the reason Charles changed his mind is irrelevant. (It might be worth noting that in Italy, the promise is not binding without delivery; in France, whether it is binding then is doubtful; in Scotland, it is not binding with or without delivery; and in England and Ireland, it may not be binding with delivery and is probably not without.) In the six systems in which the promise is enforceable with or without delivery, at least according to the prevalent opinion, Charles would have an excuse (the Netherlands, Germany, Belgium, Portugal, Austria, and Greece).