with this problem is to say that there is a contract, but that it is subject to an implied clause exempting Richard from liability for damage caused by ordinary negligence.27

If a court concludes that a contract was concluded but that it is not subject to a restriction on liability, Richard will be liable in both cases. In both cases, the damage Maria suffers is caused by his failure to fulfil his contractual obligation. Therefore, he is liable. If the contract contains a restriction on liability, Richard would be liable only if he acted with gross negligence.

germany

A contract in which somebody promises to perform a service free of charge is called a mandate (Auftrag §§ 662–74 of the Civil Code). Although the promisee has to pay the promisor’s expenses if reasonably incurred (§ 670), the contract is not mutual but obligates only the promisor.28 Even though no compensation is paid, this type of contract is not deemed to be a gift. Since the formalities for a gift (see Case 1) are not required for a mandate, the contract is valid.

If the promisor fails to do what he promised to do, he is liable for damages (breach of contract in violation of § 665 of the Civil Code29). The promisor can terminate the contract at any time but the termination is valid only after notice is given. If the promisor terminates the contract at an inopportune moment, the termination is still valid but he is liable for damages (§ 671(2)).

The problem in our case is to distinguish such a contract from a mere favour. In the case of a mere favour, there would be no liability for breach of contract. The way to make the distinction is controversial. The courts ask whether the promisor had the intention to be legally bound.30 This intention is indicated by the importance of the service for the promisee and especially by the possibility that he will suffer heavy damages if the

27The German BGH (NJW 1974, 1705) did something similar in the well-known case of the lottery gamblers. Here four friends had pooled their resources for the weekly lottery. One week the one responsible for bringing the ticket to the lottery agent forgot to fulfil his duty. Unfortunately for him they had the right number that week. The BGH did not hold him liable. It argued that the four, although entering into a contract, had made an agreement according to which liability for slight negligence was excluded.

28BGHZ 15 (1955), 102 (105).

29The promisor may only change the orders of the promisee if he can assume that the promisee would have agreed to that if he had known the circumstances. Before he does so, he has to notify the promisee and await his approval if it is not a case of emergency.

30RGZ 157 (1938), 228 (233).

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promisor fails to perform. These factors matter only if the promisor was aware of them. As already mentioned in discussing Case 4, in one case,31 the highest German court (Bundesgerichtshof) held that a promise to make a lorry driver available to another company was binding because of the high value of the lorry. In another case,32 the court enforced a promise to make certain papers available to a company because the fact that this company depended on them in a lawsuit was obvious to the promisor when he made his promise.33 In our case, the letters were economically very important to Maria, and Richard knew that. Therefore, there is a binding contract. The result would be different if, for example, the letters had contained Christmas cards.

Richard has breached this contract. As a result he is liable for all damages which have been caused by his failure. There is no difference between Cases 6(a) and 6(b).

The question whether Richard was just a friend or the seller of the aircraft may be of some relevance to his intention to be legally bound. If he was the seller, there is no question that there is a contract and that he is liable. If he was just a friend, the result may be less clear, but if he knew about the extreme importance of the matter to Maria, he would still be liable.

greece

By agreeing that Richard would mail the documents for Maria, the two entered into a legal relationship that is termed a ‘mandate’. Mandate is a unilateral contract in the sense that only one party assumes an obligation (see Case 1). It is governed by arts. 713–29 of the Civil Code. The mandator is not obligated to pay any remuneration. The one essential obligation in such a contract is that of the mandatary to conduct the affairs of the mandator.34

33Another indication of an intention to be legally bound is whether the promisor has an economic interest in the situation. RGZ 65 (1907), 17 (19).

34The contract to conduct the affairs of another person, whether of a material or a legal nature, binds the parties according to art. 361 of the Civil Code even though the arrangement is gratuitous; AP 1169/75 NoB 24, 432; A. Nikolakopoulos, The Mandate (1956); Karasis in Georgiadis and Stathopoulos, Civil Code, § 713; Stathopoulos, Contract Law, 213; art. 713 of the Civil Code (which is similar to § 662 of the German Civil Code, art. 394 of the Swiss Code of Obligations, and art. 1984(1) of the French Civil Code); art. 714 of the Civil Code (which is similar to art. 398(1) and (2) of the Swiss Code of Obligations and art. 1995(1) of the French Civil Code). In the German Civil Code the liability of the mandatary for any fault arises from the general provision § 276 which corresponds to art. 330 of the Greek Civil Code. Kafkas, Law of Obligations, arts. 713–14.

The mandatary is responsible for any fault in the course of the performance of his obligation (art. 714 of the Civil Code).35 He will therefore be liable if he negligently fails to perform his obligation or is seriously late in doing so.36 In principle, the mandator must prove that he suffered a loss through the mandatary’s negligence in fulfilling the obligation he undertook (art. 335 of the Code of Civil Procedure). Nevertheless, the mandatary’s failure to perform raises a presumption of fault which he can only overcome by proving it was due to a chance event or to force majeure.37

If the mandatary is held liable, he must pay the positive or expectation interest of the mandator that is causally related to the mandatary’s negligence.38 Thus, in our case Richard, who fails to perform his obligation to Maria, namely to mail the documents for her, will have to restore the loss which Maria suffers because of his negligence. If, however, Maria was also at fault (e.g., she did not point out the importance of the letter), the compensation that Richard will have to pay to her will be reduced or even discharged.39

In the first case this would be the value of the airplane that would have been insured if Richard had mailed the documents. In the second case, when Maria’s insurance policy on her small airplane would have been cancelled, Richard will be released from any obligation to her because Maria does not suffer any serious loss.

If Richard has undertaken the obligation to mail the documents for Maria, acting out of courtesy, then we must distinguish whether Richard wanted to bind himself in legal terms or whether this was an act outside the legal sphere. Mandate is a legal relationship and is distinguished from ‘accommodation agreements’. Both have the same gratuitous causa but mandate contains the intention of the parties to bind themselves in legal terms. The distinction between the two acts is very difficult to make in practice and all the circumstances have to be taken into consideration.

Thus, the undertaking of an obligation to mail urgent business correspondence documents is a mandate if the circumstances (e.g., pointing

35The mandatary is liable not only for intentional acts and ‘gross’ negligence but also for ‘slight’ negligence; AP 9971/75 NoB 24, 286; EfAth 163/62 Ach.N 13, 497. It should be pointed out that the mandatary is held to the higher standard of liability of the common debtor and not to the lower standard of other gratuitous contracts because of the fiduciary character of the mandate. Karasis in Georgiadis and Stathopoulos, Civil Code, art. 714.

36AP 159/74 NoB 22, 1047; Thessaloniki Court of Appeal 332/78 Arm. 32, 794.

37If the mandatary falls in default of a debtor then he is also liable for chance events and

39 M. Stathopoulos in Georgiadis and Stathopoulos, Civil Code, art. 300, no. 11.

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out the importance of the letter or awareness of the details of the addressee) suggest the existence of an important economic interest or risk for the mandator.40 In our case, Richard, despite the fact that he is a friend of Maria, will be liable because under the circumstances a contract of mandate exists between them.41

Whether Richard had undertaken the obligation because he had just sold and delivered the airplane to Maria would make no difference, because this is a secondary obligation stemming from his main obligation to sell and deliver the airplane to Maria. In this case he will be liable for non-performance of his secondary obligation and he will have to compensate Maria according to the above.

scotland

Maria will be able to enforce the promise if it is constituted in writing, in accordance with the provisions of s. 1(2) of the Requirements of Writing (Scotland) Act 1995.42 It is irrelevant whether Richard promised to mail the documents so that the plane could be insured, or so that a policy could be cancelled. It is also irrelevant under Scots law, which has no doctrine of consideration, whether Maria cannot recover after a crash or has to pay an extra monthly premium.

If Richard is a friend of Maria, this is likely to give rise to a presumption that there was no intention to create legal obligations as in Case 5, although this presumption is likely to be rebutted if the promise is constituted in writing. If Richard’s business involves selling planes, then Maria may not require the promise to be constituted in writing as he may be seen to be acting in the course of his business in terms of s. 1(2)(a)(ii) of the 1995 Act, as in Case 4.

If the promise has to be in writing, reliance could also be made on s. 1(3) and (4). Richard would have to know the nature of the documents, that is, to insure the plane or cancel the insurance policy. If so, he will know and acquiesce in Maria’s refraining to act because of his promise to mail the documents. The materiality criteria in s. 1(4)(a) and (b) are easily satisfied. As has been argued, the adverse effect suffered for the purposes of s. 1(4)(b) does not have to be related to the material act or refraining to act in s1(3) or (4)(a).

40 Karasis in Georgiadis and Stathopoulos, Civil Code, art. 713, no. 1.