about her situation matters only as to the question of whether the moment was inopportune.

Whether Albert has taken a job matters because it makes his interest in keeping the car more important. If he has not taken the job, there is no doubt about Barbara’s right to terminate the contract. Even if he has, however, it is still doubtful that his hardship would be exceptional enough to make his interest more important than Barbara’s.

greece

Barbara and Albert have entered into a contract of ‘loan for use’ for a fixed period of three months. Such a contract is governed by articles 810–21 of the Civil Code. In such a contract, the lender grants to the borrower, without remuneration, the use of a thing which is to be returned upon the expiration of the contract (art. 810 of the Civil Code).34

The wording of art. 810 of the Greek Civil Code suggests that a contract of loan for use is a contract re,35 that is, one constituted by the delivery of the thing.36 If so, then when the thing has not yet been delivered there is no contract of loan for use, but a preliminary agreement.37 Nevertheless, a contract of loan for use can be concluded solo consensu by virtue of the principle of freedom of contract (art. 361 of the Civil Code).38 Such a contract differs from a preliminary agreement since it is a contract completed even before the delivery of the thing rather than an agreement to enter into another contract. The consensual contract of loan for use is also governed by arts. 810–21 of the Civil Code.

A contract of loan for use ends when the time agreed upon expires (art. 816 of the Civil Code) or, if no time limit is fixed, as soon as the thing is used, unless there is a contrary agreement.39 Upon the expiration of the

34Filios, Law of Obligations, 148; AP 13/1971 NoB 19 (1971), 432. Article 810 of the Civil Code corresponds in part to previous law. A difference is that art. 810 provides that the borrower is obliged to return the thing when the contract expires. The law previously was that he must return it after having used it. Kafkas, Law of Obligations, art. 810.

35See Case 5 above for an analysis of the problem of contracts concluded re and solo consensu. In contracts concluded re, the borrower is not obligated before delivery. Stathopoulos, Contract Law, 40–1.

36Kafkas, Law of Obligations, art. 810, § 2b; I. Rokas in Georgiadis and Stathopoulos, Civil Code, art. 810, no. 2. In Germany there is still a dispute whether ‘the loan for use’ contract is one concluded re or solo consensu.

37For the consequences of the preliminary agreement, see Case 5.

38Rokas in Georgiadis and Stathopoulos, Civil Code, art. 810, no. 2; Filios, Law of Obligations 148, follows the opinion that a contract of loan for use is always concluded solo consensu.

39I. Spiridakis, ‘The Loan for Use’, NoB 24 (1976), 814; AP 130/1994.

184 the enforceabilit y of promises

time, the borrower is obliged to return the thing without any formal demand.40 However, according to art. 817 of the Civil Code,41 there are some exceptions to this rule. The lender can claim the thing back even before the term expires if (1) the borrower has made use of the thing in a manner contrary to the conditions of the contract; (2) he has caused the thing to deteriorate; (3) he has handed it over without right to a third party; or (4) the lender himself has an urgent need of the thing which the lender could not have foreseen.

Whether the need is ‘urgent’ will be judged ad hoc taking into consideration all the facts.42 It is agreed that the need is ‘urgent’ when the lender cannot postpone its fulfilment until the contract expires without a significant detriment to himself.43 If the need of the lender conflicts with the need of the borrower and they cannot both be fulfilled, then that of the lender prevails.44 The lender, however, must use his right to reclaim the thing in conformity with the principle of good faith (art. 288 of the Civil Code).45 Moreover, he must not have been able to foresee the need regardless of whether his inability to do so was due to his own fault or carelessness. In this case, according to one opinion, the lender can ask for the thing without any formal demand;46 according to another, he must give a notice of termination and set a reasonable period for its return.47 In these cases, the lender does not have to prove that he suffered loss, and he does not have to compensate the borrower for use.48

Thus, in Case 7, if Barbara has delivered the car to Albert, she can reclaim it if her need was considered to be urgent and unforeseeable: she cancelled her vacation after injuring her foot. If she has not yet delivered the car, then she will be discharged from the performance of her obligations under the contract (or of the preliminary contract agreement).

40Rokas in Georgiadis and Stathopoulos, Civil Code, arts. 816–17, no. 1.

41Articles 816 and 817 of the Civil Code are similar to §§ 604 and 605 of the German Civil Code, art. 309 of the Swiss Code of Obligations, and art. 1889 of the French Civil Code. Kafkas, Law of Obligations, arts. 816–17.

42The Thrace Court of Appeal has decided that if an urgent and unforeseeable need arises, the lender can ask for the thing back. Its reasoning was based on principles of good faith. It also decided that cancellation of the re-allotment of land does not constitute an urgent need. Thrace Court of Appeal 151/1984 HellD 25 (1984), 1210.

43Rokas in Georgiadis and Stathopoulos, Civil Code, arts. 816–17, no. 3; Corfu Court of First Instance 367/65 EEN 32 (1965), 852.

44Corfu Court of First Instance 367/65 EEN 32 (1965), 852.

47P. Passias in ErmAK, Introductory Remarks, arts. 810–21; I. Spiridakis and E. Perakis, Civil Code B/2 Law of Obligations, Special Part (1978), art. 817.

48Kafkas, Law of Obligations, arts. 816–17, no. 3.

186 the enforceabilit y of promises

‘look after’ or ‘store’ Barbara’s car in exchange for her lending it to him. This finding is unlikely, however, where there has been no delivery (as we shall see, it is more likely in the case where delivery has been made).

A further reason which a court might give for refusing to enforce Barbara’s promise prior to delivery is that the parties lacked the necessary intent to create legal relations. As discussed in regard to Case 1, an English court will assume, lacking evidence to the contrary, that such an intent, which is required for a valid contract, is lacking in social and domestic arrangements. Presumably Barbara and Albert are friends, so their arrangement would prima facie qualify as social.

Once delivery has been made, the relationship becomes one of bailment, more specifically, the relationship is one of commodatum or gratui- tous loan (because the relationship is for the bailee, Albert’s, benefit). Absent Barbara’s promise, it is clear that the bailment is terminable at will by either party. The effect of Barbara’s promise that Albert may have the car for a specified period of time is, like the parallel promise in Case 5, less clear. The author of the leading treatise on bailment, Palmer, states that ‘it is uncertain whether an agreement to lend for a particular term, coupled with delivery of the chattel, can be enforced against the bailor’,51 adding later that ‘there is remarkably little authority on this point’.52 As Palmer explains, there are a number of ways the case might be decided. The first is to hold, following ordinary contractual principles, that Barbara’s promise is unenforceable for lack of consideration. As noted a moment ago, a court might try to invent consideration for the promise, and cases where this has happened in post-delivery circumstances certainly can be found.53 Second, and if Albert has detrimentally relied on Barbara’s promise, Albert might argue that, in view of his reliance, Barbara is estopped from going back on her word. The difficulty with this argument is that, as explained in the discussion of estoppel in Case 1, in English law estoppel cannot be used to found a cause of action. It might be argued that Albert is not using estoppel to found a cause of action here, since, assuming he was refusing to return the car, he would be the defendant in Barbara’s action for repossession of the car. The ‘no cause of action by estoppel’ rule, however, is understood as requiring that the parties have pre-existing legal relations at the time the promise was made. Estoppel can be used only as a defence to the enforcement of those relations. Here, Barbara and Albert had no legal relations at the time of

51 Ibid., 630. 52 Ibid., 658.

53E.g., Blakermore v. Bristol & Exeter Rly Co. [1858] 8 E & B 1035; 120 ER 385; and, see generally, Palmer, Bailment, 659.