224 the enforceabilit y of promises

widened, its applications are relatively rare. On the other hand, special legislation of recent origin has been less reluctant than traditional civil law to protect contracting parties who are in a situation of economic dependence. One can see examples in consumer law (see art. L. 122–8 of the Code de la consommation relating to the abuse of a weakness), and in competition law (see art. 8 of the ordinance of 1 December 1986 and arts. 36(3), 36(4) and 36(5) of the same text in the law of 1 July 1996).

belgium

It seems that Paul’s promise to Robert of one and a half times the amount originally agreed is invalid because of a defect in consent (vice du consentement): it was obtained by duress (violence) (arts. 1111–15 of the Civil Code). Duress is defined (art. 1111) as a threat ‘capable of overwhelming a reasonable person, and which may create in that person a fear of exposing himself or his fortune to considerable and actual harm’.9 Duress invalidates consent if four conditions are met.10 First, it must be capable of overwhelming a reasonable man or woman, due regard being had to the circumstances of the case. Here, Robert’s threat to discontinue performance of the contract would likely overwhelm any reasonable restaurant owner, due regard being had to the consequences of a delayed opening of the restaurant. Second, the threat must have induced the victim to consent. Here, surely Paul would not have promised Robert the amount he demanded if Robert had not threatened to discontinue performance of the contract. Third, the threat must arouse the fear of considerable and actual harm. Here, the start of Paul’s business was seriously jeopardized. Fourth, the threat must be illegitimate or unjust. Quite obviously, the threat to discontinue performance of a contract entered into validly is not legitimate. Abuse of the economic dependence of the other party (see the discussion of abuse of right in Case 8) may lead a court to find there was duress in entering into a contract.11 If there was duress, then the agree-

9‘[D]e nature à faire impression sur une personne raisonnable, et qu’elle peut lui inspirer la crainte d’exposer sa personne ou sa fortune à un mal considérable et présent’.

10See Cass., 12 Feb. 1988, Pas., I, 697; Gand, 15 Jan. 1991, RW, 1992, 467, and see S. Stijns, D. Van Gerven, and P. Wéry, ‘Chronique de jurisprudence. Les obligations: les sources (1985–1995)’, JT, 1996, no. 61, p. 712.

11See De Page, Traité élémentaire, vol. I, no. 60 (discussing the case of an employee forced to consent to a loan to his employer under threat of being fired); Mons, 13 June 1994, JLMB, 1995, 484 (holding that a medical doctor’s consent to change the status of his contractual relationship with a medical institution from employed worker to independent worker, thereby reducing his social security benefits and the cost of them to his employer, was obtained under duress by the threat that he would lose his job with the institution). However, the mere discrepancy between the respective economic power

ment to modify the contract price is invalid. Robert must then be satisfied with the original contract price.

the netherlands

The principle of freedom of contract implies that parties are free to change their contract by their consent. They may agree that one party has to pay a higher price for something he was already entitled to receive on the basis of the first contract. However, such a contract, like any contract, is voidable if it is concluded as a result of an abuse of circumstances or a threat (art. 3:44(1) of the Civil Code).

Abuse of circumstances is governed by art. 3:44(4) of the Civil Code which provides:

A person who knows or should know that another is being induced to execute a juridical act as a result of special circumstances – such as state of necessity, dependency, wantonness, abnormal mental condition or inexperience – and who promotes the creation of that juridical act, although what he knows or ought to know should prevent him therefrom, commits an abuse of circumstances.

Cases of ‘economic duress’ are not as such excluded from the application of this article. If nothing changed except that Paul became totally dependent on Robert’s promise to perform, then it is likely that Paul may avoid the contract. On the facts of this case, Robert would then seem to have committed an abuse of the circumstances.12

Thus, much depends here on the extent to which Paul depended on Robert’s promise. Objectively, the promise Paul made does not seem to have been the only possible solution to the problem he confronted after Robert’s refusal. If Robert had actually stopped performing, he would have been liable for non-performance (art. 6:74 of the Civil Code). Paul would then have been entitled to compensation for all of the resulting damage (arts. 6:74 and 6:95 ff. of the Civil Code13). Moreover, he could have asked the court, in a short procedure, to order specific performance (art. 6:296

of the parties does not in itself constitute duress (Cass., 2 May 1969, Pas., I, 781). There must be an abuse of this situation.

12He might not have, though, if he had demanded the increase in payment only because of a corresponding increase in his costs.

13Article 6:74(1) of the Civil Code: ‘Every failure in the performance of an obligation obliges the debtor to repair the damage which the creditor suffers therefrom, unless the failure cannot be imputed to the debtor.’

Article 6:95 (1) of the Civil Code: ‘The damage which must be repaired pursuant to a legal obligation to make reparation consists of patrimonial damage and other harm . . .’

Article 6:96 (1) of the Civil Code: ‘Patrimonial damage comprises both the loss sustained by the creditor and the profit of which he has been deprived.’