Summaries

or inexperience’. Most likely, Paul was completely dependent, but the matter is not clear. Relief may also be given for duress.

Spain: Most likely, the promise is unenforceable on the grounds that it is not a valid novation. The causa of a valid novation is the modification of the former obligation, and a change in the amount owed does not count as such a modification. Relief would probably not be given for duress since the harm threatened must be imminent and serious, and here, Paul would suffer only some delay.

Portugal: The promises are probably enforceable despite the claim of duress since the threat was not to commit an illegal act. They probably are unenforceable for ‘usury’, which is the exploitation of another’s state of necessity to obtain unjustified or excessive benefits.

Italy: Relief would be given for duress.

Austria: Most likely, relief would be given for duress. Germany: Relief would be given for duress.

Greece: Relief would be given for duress. It could also be given for the exploitation of another person’s need in a manner contrary to morality. Scotland: Relief would probably not be given for duress since Paul could have sued for damages if Robert breached.

England: Neither promise is binding. Once it would have been said that there is no fresh consideration. Recently, however, it has been held that there is consideration for a promise if the promisor receives a ‘practical benefit’, even if the benefit is the performance of a pre-existing legal duty. But relief would be given for duress.

Ireland: Neither promise is binding. Once it would have been said that there is no fresh consideration. Recently, however, an English court held that there is consideration for a promise if the promisor receives a ‘practical benefit’, even if the benefit is the performance of a pre-existing legal duty. It is not clear whether this decision will be followed in Ireland. Even if it were, relief would be given for duress.

Preliminary comparisons

Duress and exploitation: Virtually all reporters discussed the possibility of relief for duress. Seven thought it likely (Belgium, Italy, Austria, Germany, Greece, England, and Ireland); two thought it possible (France and the Netherlands); three thought it unlikely (Spain, Portugal, Scotland). Nevertheless, relief would be given anyway, in the Netherlands, for ‘abuse of circumstances’, in Spain, because a mere change in the amount owed does not constitute a novation, and in Portugal, because the agreement

238 the enforceabilit y of promises

was made by exploiting another’s state of necessity. Thus only the reporters from two countries thought the promises might be enforceable (France and Scotland). The Greek reporter also believed that the promise might be voidable on the grounds that another person’s need was exploited in a manner contrary to morality.

Consideration: The two common law reporters noted that once, the promises would have been unenforceable because they lack fresh consideration, although the approach now taken in England, which may be followed in Ireland, is to count the performance of a pre-existing contractual duty as consideration if the promisor receives a ‘practical benefit’.