party to comply with the original mode of performance, unless in the mean time circumstances so change as to render it impossible or inequitable so to do. In the present case Contractor has acted on the basis of Realty’s promise to make payment without seeking an architect’s certificate. Circumstances have so changed following the waiver by Realty of the architect’s certificate requirement as to render it inequitable to permit Realty now to require Contractor to comply with the original requirement. In the circumstances, Realty would not be permitted to repudiate the waiver and rely on the original term of the agreement.

Summaries

France: Both promises are enforceable. They are unilateral offers to modify the contract in the other party’s favour which are enforceable when the other party accepts, which he may do tacitly or by changing his position in reliance.

Belgium: Both promises are enforceable.

The Netherlands: Both promises are enforceable.

Spain: The promises are valid as novations. As already noted (Case 9), the causa of a valid novation is the modification of the former obligation. Here, unlike in Case 9, the content of the obligations has changed. It does not matter that the burden to one party has increased without any increase in compensation.

Portugal: The promise to install the glareproof windows is enforceable. The promise to pay without an architect’s certificate is not, since it is illegal to dispense with an inspection. Nevertheless, the owner cannot demand an inspection after the area in question has been covered up since that would be an abuse of right.

Italy: Both promises are enforceable because modifications of a contract and waivers of contractual rights which only burden the promisor are binding without acceptance as soon as they come to the notice of the promisee.

Austria: Both promises are binding, and will be considered to be modifications of the original contract rather than gifts.

Germany: Both promises are binding if accepted because they are not considered to be gifts but a revaluation of the original contractual duties. Greece: Both promises are binding.

Scotland: Both promises are binding because, even if they are gratuitous, they are made in the course of business. They would also be enforceable if the promisee changes his position in reliance on them.

266 the enforceabilit y of promises

England: The promise to install the windows is not enforceable because it lacks consideration. The promise not to require an architect’s certificate is enforceable if Contractor relies on it, and perhaps if it does not, because it is a ‘waiver’, and therefore does not need consideration.

Ireland: The promise to install the windows is not enforceable because it lacks consideration. The promise not to require the architect’s certificate is enforceable if Contractor relies on it. It does not need consideration because it is a ‘waiver’. If Contractor has not relied on it, then Realty can revoke it.

Preliminary comparisons

In all civil law jurisdictions except Portugal, both promises are enforceable. In Portugal, the promise to pay without an architect’s certificate is not enforceable because it is illegal to dispense with an inspection, although, if the area in question has been covered up, to demand an inspection is an abuse of right. In all civil law jurisdictions except Scotland, the promises are not considered to be gifts. In Scotland they are enforceable anyway because they were made in the course of business (and would be enforceable even if they were not if the promisee relied upon them).

In England and Ireland, the promise to install the windows is unenforceable because it lacks consideration. The promise not to require an architect’s certificate is enforceable if the promisee relies upon it because it is a ‘waiver’ which does not need consideration. If the promisee does not rely, then Realty will be able to revoke it in Ireland and may be able to do so in England.