Case 12: promises to take less than was agreed

268 the enforceabilit y of promises

to a question of evidence. Can Travel prove that this is what Realty actually agreed to do? Under French law, there is insufficient evidence to conclude that Realty has expressly agreed to waive the debt. Travel can probably only claim that Realty tacitly agreed to do so. Construing the promise this way will prevent Realty from reneging on it. But trial judges are very wary of finding that there was tacit consent. They are not likely to find that there was an intention to extinguish a debt or waive a right in the absence of clear terms. In such cases, consent must be unambiguous1 since French law follows an unwritten rule that waiving or renouncing a right cannot be presumed. The case law therefore requires that the creditor express an unequivocal desire to release the debtor.2 Tacit acceptance by the debtor may indicate his agreement that the debt is waived, but it is unlikely that such an agreement can be inferred from a creditor’s silence. Alternatively, the parties may merely have agreed that the term of the debt has been extended, that is, that the time for paying the rent due under the original contract has merely been postponed. In that event, the contested part of the debt is not cancelled but cannot be claimed for the duration of the recession. At the end of the recession, Travel will have to pay both the full amount of the rent and the part of the arrears outstanding from the recession. Such an agreement to postpone payment of a debt is called in French law a clause ‘for the return of better fortune’ (clause de retour à meilleure fortune).

Once again, characterizing the content of the agreement is a question of fact left to the trial judges to decide. In the absence of clear language, the courts must examine the parties’ intentions, which is a factual issue. The Cour de cassation refuses to intervene in such matters. If, on the contrary, the contract were very clear about what the parties meant, the question of which way to characterize their agreement – as a waiver of the debt or extension of the term – would be regarded as one of law, and, consequently, one which the Cour de cassation would review.

One might add that even if the agreement is interpreted as the extension of a term, the promisee could still claim more time to pay if the promisor unexpectedly asked for immediate payment. The idea is not exactly the same as estoppel under English law, but may amount to the same thing. Although the promisee cannot escape the debt, under art. 1244 of the Civil Code he may ask for more time to pay (délai de grace), or under art.

1 Req., 12 Dec. 1904, S. 1905, I, 321, DP 1906, I, 163.

2 See, e.g., Versailles, 20 May 1994, RTDCiv. 1994, 863, note J. Mestre.

1134 he may claim that the promisor acted in bad faith by asking for the entire amount in arrears at once. The promisor may therefore recover the amount in arrears but not if he behaves unreasonably.3

belgium

By agreeing that Travel can pay half the agreed rent for the duration of the recession, Realty waived a debt (remise de dette) (arts. 1282–8 of the Civil Code). In this type of contract, the debtor’s consent will often be tacit. Since the debt is waived gratuitously it could constitute a donation but only if the donor acted animus donandi, with the intention of benefiting another (l’intention libérale). That intention is absent if, as here, the creditor waives part of the debt in order to preserve the greater part of it. In any event, even if it were a donation, it would not have to be evidenced by a notarial document (acte solennel) (see art. 931 of the Civil Code) since it would constitute a donation indirecte (see Case 1). The waiver of a debt extinguishes the obligation.4 Realty could not recover the amount waived unless Travel later promised to pay that amount on its own initiative, thereby acknowledging a natural obligation (see Case 3).

the netherlands

Realty cannot recover from Travel. It has renounced its right to the amount of rent originally due. Article 6:160(2) of the Civil Code provides: ‘An obligation is extinguished by a contract between creditor and debtor whereby the creditor renounces his claim.’5 Renunciation in the sense of this article may also consist of renunciation of part of a claim.6 A gratuitous renunciation is not a gift if, as seems to be the case here, the party who renounces does so because he hopes the other party will recover and be able to pay his remaining debts: in this case, the full rent for the next seven years.7 If, however, the renunciation here was a ‘material gift’ it would still not be a ‘formal’ one, which means that a notarial document would not be required.8

3 Com., 7 Jan. 1963, Bull. civ. IV, no. 16, p. 14; Civ. 3, 8 April 1987, Bull. civ. III, no. 88, p. 53. 4 On waiver of a debt, see Van Ommeslaghe, Droit des obligations, 1100–3.

5See also section 2: ‘An offer to renounce by gratuitous title, addressed by the creditor to the debtor, is deemed accepted when it has come to the attention of the debtor and he

270 the enforceabilit y of promises

spain

Realty has granted Travel a tacit remission of the debt. Article 1156 of the Civil Code provides: ‘Obligations are extinguished: (1) by payment or performance, (2) by loss of the thing owned, (3) by remission of the debt, (4) by confusion of the rights of the obligor and obligee, (5) by compensation,

(6) by novation.’

Scholars distinguish between remission (condonación) and pactum de non petendo.9 In the latter case, the creditor agrees not to require the payment of the debt only while certain circumstances are present.

According to the Civil Code, remission may be express or tacit. If express, then it must meet the requirements of a donation (art. 1187(2): see Case 1) and therefore it must be accepted. On one occasion the Tribunal Supremo held that both the promise and the acceptance must be in writing10 in order to meet all the requirements for a donation. On another occasion, it held that a debt was cancelled by a remission made by one party only and not in writing.11 Most scholars think the Tribunal Supremo was mistaken in the former case and right in the latter.12 The reasoning is that, if tacit remission is allowed (art. 1177), it does not make sense to require written form in case of an express remission. Article 1280, which requires all contracts of more than 1,500 pesetas in value to be in writing for purposes of proof, will apply to this remission (see Case 13).

Although a remission is usually an act of liberality, made causa donandi,13 some scholars say that the remission is of ‘abstract nature’, that is, it has legal effect even without a causa. For example, it would be effective even if the person remitting the debt did not intend to enrich the debtor (as he would in an act of liberality) but did so to avoid the hassle and expenses that would come with a lawsuit,14 or if he did not claim the debt because he forgot or because it is such a small amount that it is not worth it to him.15 In one decision, the Tribunal Supremo agreed.16 The buyer of a new house remitted the seller’s obligation to deliver the house free of

15In a case cited in discussing Case 9, the court refused to enforce an agreement that was ambiguous but which the debtors claimed had reduced the amount they owed from 50,000 pesetas to 25,000 pesetas. TS, 17 March 1933. In that case, there was no remission because there was no causa liberatoria or intention to relieve the other party of part of

his obligation. It is true that the authors just cited contend that a remission need not have a causa. But they have in mind cases in which the creditor was oblivious or in