Whether Richard is liable in tort depends on the circumstances of the case. It is unlikely he will be held liable because, if the mailing was that important to Maria, she should have taken care of the matter herself. It is somewhat more likely, however, in Case 6(a), in which an insurance policy is not renewed, than in Case 6(b), in which a policy is cancelled, because in the first case, the obvious danger of serious harm to Maria requires Richard to use greater care.

Some have argued that tort liability should be less strict where the damage is caused while rendering a gratuitous service to the victim.13 This view is shared by lower courts and by arbitrators.14

It is clear, then, that there is no contractual liability. Whether there is liability in tort depends on the circumstances, and especially on what Maria told Richard and on what Richard knew otherwise about the importance of the mailing.

It does matter if Richard promised to help because he was a friend whose profession was completely unrelated to aircraft, insurance, and mailing of documents. If Richard was a friend it is most unlikely that the agreement was a legally binding contract. It is also unlikely that he will be held liable in tort because he probably did not have to realize what damage Maria could suffer, and Maria probably was careless herself in entrusting that task to such a person.

It may also matter if Richard promised to help because he had just sold and delivered the plane to Maria. The promise may be part of the agreement to sell and as a consequence the violation of the promise may lead to contractual liability (art. 6:74 of the Civil Code). Whether his promise is part of the sale is a matter of interpretation (arts. 3:33 and 3:35). Since Richard had already sold and delivered the plane, it may be somewhat problematic to regard the promise as part of the same contract. The promise may also lead to a duty based on good faith (art. 6:248(1)).

spain

Under some legal systems Richard’s arrangement with Maria might be considered a contract of mandate or gratuitous agency. But it would not be considered such a contract (contrato de mandato) in Spanish law. Richard

13See Van Schaick, ‘Vriendendienst’, 320; T. Hartlief, ‘Aansprakelijkheid bij vriendendiensten’ WPNR 6200 (1995), 733.

14See the cases mentioned by the authors referred to in the preceding note. Conflicts concerning damage insurances are dealt with by the Raad van Toezicht op het Schadeverzekeringsbedrijf.

considered a contract for services (contrato de prestação de serviços). According to art. 1154 of the Civil Code, this contract can be gratuitous. Indeed, the term is a general one which embraces all agreements to render services, whether gratuitous or not.18 Therefore, it is binding on Richard who has to fulfil the obligation he has assumed. If he fails to perform, he is liable for all the damage he has caused to Maria (art. 798).

Nevertheless, it might matter if Richard is merely a friend of Maria because in this case it is possible that the agreement between the parties is based on a social obligation arising from their friendship without any intent to establish a legal obligation. If so, we would not have a contract but a mere ‘gentlemen’s agreement’.19 Richard would not be liable.

italy

Richard is liable if he negligently failed to mail the documents for Maria in both Cases 6(a) and 6(b). It does not matter whether Richard promised to help because he was a friend whose profession was completely unrelated to aircraft, insurance, and the mailing of documents or because he had just sold and delivered the plane to Maria.

In these cases, the parties have entered into a contract of mandate (mandato) which is a nominate contract whereby one party binds himself to accomplish one or more legal transactions for the account of another (art. 1703 of the Civil Code).20 Since Richard promised to mail the documents without charge, the contract is one of gratuitous mandate (mandato gratuito).21 Here, Maria actually gave Richard the documents in accordance with his promise to mail them. The handing over of the documents necessary to perform such a task is termed, in Italian law, the commendatio

18In Portuguese law, mandato (mandatum or agency) is a contract for services which may be gratuitous but is limited to the performance of legal acts on behalf of another, which is not the situation here.

19See C. M. Pinto, Teoria Geral do Direito Civil, 3rd edn (1983), 382.

20U. Carnevali, ‘Mandato (diritto civile)’, Enc. Giur. Treccani (1990); G. Bavetta, ‘Mandato (dir. priv.)’, Enc. dir. 25 (1975), 321 ff.; A. Luminoso, ‘Mandato, commissione, spedizione’, in Cicu-Messineo, Tratt. dir. civ. e comm. (1984); G. Minervini, ‘Il mandato, la commissione, la spedizione’, in Vassalli, Tratt. di dir. civ. (1957); C. Santagata, ‘Del mandato – Disposizioni generali’, in Commentario al codice civile Scialoja-Branca (1985).

21Article 1709 of the Civil Code states that this contract is presumed not to be a gratuitous one. It is permissible, however, for it to be gratuitous. A court could infer that it is from unequivocal circumstances such as the relationship between the parties or a particular position of the mandatary (see Cass. civ., 27 Jan. 1980, no. 605; Cass. civ., 27 May 1982, no. 3233).

158 the enforceabilit y of promises

rei.22 Since it has occurred, under the rules that govern mandate, Richard is liable to Maria if he acts negligently,23 although art. 1710 of the Civil Code provides that if the mandate is gratuitous, the negligence of his conduct is to be evaluated less strictly. He would be liable if, as in the present case, he fails to perform the mandate when non-performance may cause damage to Maria.

Scholars are divided as to the measure of damages in such cases.24 Here, however, by beginning the performance (taking the documents to mail them), Richard made it impossible for Maria to mail the documents herself or to find an alternative solution. A basic rule of mandates that require cooperation – and one on which all the scholars agree – is that if by negligently failing to complete performance, Richard caused Maria’s situation to change for the worse (modificatio in peius), he has to pay damages even if the promise was gratuitous.25

austria

Here again, the question is whether Richard had the intention to assume a legal obligation.26 He would have had such an intention if he were the seller of the plane Maria just bought. In this case his promise belonged to his professional and not his private sphere. If, however, Richard is just a friend of Maria, the situation is problematic. Different aspects of it have to be taken into consideration. On the one hand, it must have been obvious to Richard that Maria had a financial interest in the proper mailing of the documents. On the other hand, Maria must have been aware that Richard did not have an interest in accepting a legal obligation which could result in a very expensive liability. One way a court could deal

22For the crucial relevance in these cases of the commendatio rei, see G. Gorla, ‘Il dogma del “consenso” o “accordo” e la formazione del contratto di mandato gratuito nel diritto continentale’, Riv. dir. civ. (1956), 923–32; Gorla, Il contratto, 173 ff.

23See R. Sacco, ‘Il Contratto’, in Vassalli, Tratt. di dir. civ. 6:2 (1975), 625 ff.; G. Castiglia, ‘Promesse unilaterali atipiche’, Riv. dir. com. I (1983), 348–9.

24See, e.g., Castiglia, ‘Promesse unilaterali atipiche’, 370; Sacco, ‘Il contratto’, 625; C. M.

Bianca, ‘Dell’inadempimento delle obbligazioni’, in Commentario a cura di Scialoja e

26The contract concluded would be a Werkvertrag. According to § 1151 of the Civil Code, this is a contract by which a party promises to perform a particular piece of work, to produce a certain specified result (locatio conductio operis, see R. Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990), 393). The contract would not constitute a mandate. According to Austrian law (§ 1002 of the Civil Code), there is a mandate only if the mandatary has the obligation to perform legal acts for the mandator such as concluding a contract. The Austrian law in this respect operates with a different conceptual apparatus from the German Civil Code (BGB)