Case 6: promises to do a favour

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to characterize the relationship between the parties as anything other than non-legal. The only legal description that springs to mind – to be ultimately rejected – is one of a mandat à titre gratuit under French law: a contract of agency without compensation. An agent’s liability for breach of such a contract is governed by art. 1991 of the Civil Code. He must pay damages for his own failure to perform (inexécution). The concept of inexécution covers complete failure to perform, poor performance, late performance, and so forth. Under art. 1992 of the Code, an agent is liable for intentional wrongdoing (dol) as well as any other fault (faute) in carrying out his agency. However, art. 1992 provides by way of exception that the liability for fault of an agent who acts without compensation is to be judged less ‘rigorously’ than if he receives remuneration. Case law has interpreted this exception to apply to the standard of care rather than to the quantum of liability.1 In our view, however, an agency contract is principally a power given by one party to make a decision or enter into a transaction (see Case 15). Here, the actions undertaken are purely material, and thus the description seems inappropriate. Perhaps we should not be surprised that the favours or services that friends may do for one another are considered outside the realm of legal enforcement.

belgium

If Richard offered his help as a friend of Maria, the preliminary question might be asked whether there is a contract imposing obligations that are legally enforceable. For there to be such a contract, the parties must intend 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 that the parties intended here (see Case 4).

Assuming that a contract has validly been entered into in this case, it is a contract of agency (contrat de mandat) (arts. 1984 f. of the Civil Code): Richard is appointed to act on behalf of Maria and in her name. Richard will be held liable if the contract is not performed (art. 1991(1)). However, his liability for faults will be evaluated less severely if the contract was entered into gratuitously (art. 1992(2)).2 The fact that Richard may have been ignorant in these matters does not, per se, mitigate his liability.

1 Civ 1, 4 Jan. 1980, Bull. civ. I, no. 11, p. 9.

2Article 1992(2) provides: ‘The agent is liable not only for fraud but also for the faults he commits in his management. Nevertheless, liability for faults will be evaluated less severely for the agent whose agency was entered into gratuitously than for an agent who receives a salary.’

If Richard intervened because he had just sold and delivered the plane to Maria, the contract would be one of commercial agency (mandat commercial) which is non-gratuitous (contrat à titre onéreux) unless the parties provide otherwise.3 Rules applicable to commercial agents are those generally applicable in matters relating to the liability of professionals (responsabilités professionnelles).4

the netherlands

Probably, Richard is not liable in contract. Therefore, Maria and Richard did not conclude the contract known in Dutch law as opdracht (mandate or mandatum) (see arts. 7:400 ff. of the Civil Code). There are no special rules on the formation of such a contract. The ordinary rules on contract formation apply. It does not seem that Richard intended to conclude a binding contract (art. 3:33 of the Civil Code) or that Maria could reasonably rely on him wanting to do so (art. 3:35 of the Civil Code). As in Case 5, the promise seems to be a mere social arrangement, not one intended to have legal effects. Therefore, Richard will not be liable.

Although there is no case law, it is generally accepted that agreements to render a service between friends, neighbours, and relatives are not usually considered to be legally binding contracts.5 The reason there is no case law may be that people will not readily go to court for the performance of a gratuitous, informal promise by a friend.

If Richard was Maria’s insurance agent, the agreement would be a contract known in Dutch law as lastgeving. Lastgeving is a specific type of opdracht where a party agrees ‘to perform one or more juridical acts on account of’ the other party (art. 7:400). In that event, it may make a difference for Richard’s liability that the contract was gratuitous.6 It may matter in several ways. First, and most appropriately, the duty of care may be less strict. According to art. 7:401 of the Civil Code, the standard is ‘the care of a good mandatary’7 which may be lower if the contract was gratuitous. Second, the damages for which Richard would be liable may be less extensive. According to art. 6:98, the damages must be such ‘as can be

3 See P. A. Foriers, ‘Le droit commun des intermédiaires commerciaux’, in L. Simont, P. Foriers, I. Verougstraete, and B. Glansdorff, Les intermédiaires commerciaux (1990), 29 f., no.

15.4 See ibid., nos. 27–30.

5 See Pitlo/Du Perron 225; Asser/Kortmann 5–III, no. 54; Van Schaick, ‘Vriendendienst’, 316.

6See Pitlo/Du Perron 226; Parlementaire Geschiedenis boek 7 (invoeringswet boeken 3, 5, 6), 323; Van Schaick, ‘Vriendendienst’. Contrast Asser/Kortmann 5–III, no. 72.

7Article 7:401 of the Civil Code: ‘In his activities, the mandatary must exercise the care of a good mandatary.’

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imputed’ to the person responsible ‘taking into account its nature and that of the liability’.8 The fact that liability is gratuitous may be one factor to be taken into account. Finally, liability for failure to perform a gratuitous undertaking might be tempered by applying art. 6:109. It provides: ‘The judge may reduce a legal obligation to repair damage if awarding full reparation would lead to clearly unacceptable results in the given circumstances, including the nature of the liability, the juridical relation between the parties, and their financial capacity.’9

As mentioned earlier (Case 5), one author has argued for general indulgence for gratuitous promisors.10

Nevertheless, Richard may be liable in tort. If he knew how important the mailing of the documents was to Maria, and he failed to mail them for no good reason, his conduct may be ‘an . . . omission violating a . . . rule of unwritten law pertaining to proper social conduct’ (art. 6:162 of the Civil Code). If so, it could constitute a tort.

Article 6:162 is the general tort clause of the Dutch Civil Code. The standard of care (zorgvuldigheidsnorm) (‘standard for carefulness’) in section 2 holds a person responsible, not only when he violates another person’s rights or his own statutory duties, but also when he violates ‘a rule of unwrittenlawpertainingtopropersocialconduct’(hetgeen volgens ongeschreven recht in het maatschappelijk verkeer betaamt).11 This provision codifies a test which was adopted in 1919 in the leading case of Lindenbaum/Cohen in which one competitor had bribed an employee of the other in order to get access to his trade secrets.12 The test is very broad. It has led to a huge amount of case law and has overshadowed the other headings of tort liability. As with the other headings, plaintiffs can recover for pure economic loss.

8Article 6:98 of the Civil Code: ‘Reparation can only be claimed for damage which is related to the event giving rise to the liability of the debtor in such a fashion that the damage, also taking into account its nature and that of the liability, can be imputed to

the debtor as a result of this event.’

9Article 6:109 of the Civil Code: ‘(1) The judge may reduce a legal obligation to repair damage if awarding full reparation would lead to clearly unacceptable results in the given circumstances, including the nature of the liability, the juridical relationship between the parties and their financial capacity. (2) The reduction may not exceed the amount for which the debtor has covered his liability by insurance or was obliged to do

so. (3) Any stipulation derogating from paragraph 1 is null.’

10Van Schaick, ‘Vriendendienst’, 316.

11‘[A]n act or omission violating a . . . rule of unwritten law pertaining to proper social conduct’ as a translation of ‘een nalaten in strijd met . . . hetgeen volgens ongeschreven recht in het maatschappelijk verkeer betaamt’ is not very satisfactory. Neither is the French translation: ‘l’omission contraire à . . . une règle non écrite qui énonce ce qui est convenable dans le commerce social.’

12HR 31 Jan. 1919, NJ 1919, 161, W 10365, 2, note Molengraaff.