Summaries

The Netherlands: The agreement is valid without a formality because it is the renunciation of a claim.

Spain: The agreement is probably valid without a formality because it is the remission of a debt. Even though express remissions must meet the same requirements as gifts, some courts (though not others) have held that while the remission must be accepted it need not be made with the same formalities as a gift, and that is the view of most scholars. In any event, here the remission was tacit, and therefore does not have to meet the same requirements as a gift. Moreover, some scholars believe that if the remission of a debt that is not made causa donandi, to benefit the other party, but in the creditor’s own interest, it is no longer a gift but a promise with an ‘abstract nature’ that is enforceable without a causa.

Portugal: The agreement is valid as a modification of the original contract, and so Realty can recover if the promise is interpreted as a relinquishment of its claim but not if it is interpreted as a postponement.

Italy: As noted (Case 11), waivers of contractual rights that burden only one party are binding as soon as they come to the notice of the promisee, and so Realty cannot recover the rent provided its promise is interpreted as a waiver rather than a postponement.

Austria: The promise to relinquish a claim is not considered to be a gift, and therefore is binding without a formality. Consequently, Realty cannot recover unless its promise is interpreted as a postponement rather than a relinquishment of its claim. It would be interpreted as a postponement in case of doubt.

Germany: Realty cannot recover if its promise is interpreted as a reduction of rent rather than a postponement because, as noted earlier (Case 11), such promises are considered to be revaluations of the contractual obligations rather than gifts. In case of doubt, the promise would be interpreted as a postponement.

Greece: Realty is bound by its promise to reduce the rent unless that promise is interpreted as a postponement, which is unlikely.

Scotland: The promise should be interpreted as a reduction of the rent, not a postponement. Nevertheless, it is not enforceable because contracts to transfer interests in land must be in writing, including the modification of a lease.

England: The doctrine of promissory estoppel will prevent Realty from recovering the rent despite the lack of consideration for its promise. Ireland: The doctrine of promissory estoppel will prevent Realty from recovering the rent despite the lack of consideration for its promise.

278 the enforceabilit y of promises

Preliminary comparisons

Assuming it is interpreted as a reduction in rent and not a postponement of the time it is due, the promise is valid in every jurisdiction except Scotland, where it would not be because it is a contract affecting an interest in land which, for that reason, must be in writing. In all the other civil law jurisdictions, the promise is enforceable because the reduction of a contractual claim is not considered to be a gift and therefore does not require a formality. In the two common law jurisdictions, it is enforceable under the doctrine of promissory estoppel even though the promisee seems to have done nothing in reliance except comply with his pre-exist- ing contractual obligations.