Case 14: promises of rewards

for his expenses. If the contract was analysed as a contrat d’entreprise, Raymond might be able to invoke this provision and claim his expenses.

Alternatively, Simone’s offer could be interpreted as a promise of a reward, that is, as a unilateral contract. If Raymond expressly accepts, the contract then becomes a contrat d’entreprise – a bilateral contract – as before. If Raymond tacitly accepts, by way of exception, his silence will suffice as an acceptance because the offer is made in his sole interest (see Case 11). Once again, a bilateral contract will be formed on the basis that the offer is made in his sole interest (see Case 11 above).

In Case 14(b), when Simone advertises in the newspaper, she makes an offer to the public at large. Under French law, such an offer binds the promisor and the promisee under the same conditions as an offer to a specified person.1 Thus an offer to the public at large is not freely revocable. It must be kept open until the fixed term has expired or until the end of a reasonable time. After this period, the offer will be deemed to have lapsed. On these facts, the courts will probably consider that the offer to the public at large has lapsed after three months.

French law has always been very attached to an analysis of a promise of a reward as a bilateral contract. The theory that it is a unilateral undertaking has not really been accepted. Recently, however, a judgment of the Court of Appeal of Toulouse adopted the unilateral contract analysis2 (see Case 1). Here, however, the facts can be distinguished. That case was one in which a prize could be won with no effort on the part of the winner. In this case, to obtain the reward, one must search for the necklace. Also, in this case, analysing the transaction as a unilateral undertaking does not seem very realistic: the performance of the contract (finding the jewellery) would then be simultaneous with the acceptance of the offer.

In equity, following principles of unjust enrichment, the judges may be tempted to consider the conscientious but unsuccessful searcher as a person who has undertaken the management of another’s affairs (gestion d’affaires). Such a person is reimbursed for all ‘useful and necessary costs’ (art. 1375 of the Civil Code).

In practice, however, the circumstances where damages can be obtained for the withdrawal of an offer are rare, except if the withdrawal is characterized as intemperate and indicates a manifest change of mind or a breach of an express undertaking. The reasonable period implied by the courts is generally very short.

1 Ghestin, Traité de droit civil no. 297, pp. 365 ff.

2 Cour d’appel, Toulouse, 14 Feb. 1996, Bull. Civ., 1 July 1996, IR no. 433.

302 the enforceabilit y of promises

belgium

The contract between Simone and the private detective in Case 14(a) is a contrat d’entreprise, literally, an ‘enterprise contract’ or contract to achieve a particular result. It belongs to the category of louage d’ouvrage, literally, hiring of labour. In contrast to an employment contract, it does not create a relationship of subordination between the parties (see arts. 1710 and 1779 of the Civil Code). Having entered into such an agreement, it is hard to see how Simone could unilaterally change her mind about how much she is willing to pay unless this possibility were specifically provided for in the contract.3 If Simone wishes to terminate the contract with the detective, she may do so provided she complies with art. 1794 of the Civil Code which provides: ‘The master may terminate the marché à forfait [the specific work to be performed] on his own initiative, even though the work has commenced, if he compensates the contractor for all expenses incurred, for all the work, and for everything he could have gained in this undertaking’.4 The extent of the compensation depends on whether the termination of the contract is attributable to the contractor’s negligence. If so, compensation covers only costs incurred; if not, it includes gains which would have resulted from the undertaking. Here, awarding compensation for these gains raises the difficulty that we do not know whether the detective would have found the necklace or not. The judge will have to make a decision ex aequo et bono based on the case law that deals with the so-called ‘loss of a chance’ (perte d’une chance).5

The advertisement in Case 14(b) is a promise of a reward (promesse de récompense) which constitutes a commitment through a unilateral declaration of will.6 According to some, it is enforceable because a unilateral act

3 See P. A. Foriers, ‘L’objet et la cause du contrat’, in Dieux, Les obligations, 131.

4 ‘Le maître peut résilier, par sa seule volonté, le marché à forfait, quoique l’ouvrage soit déjà commencé, en dédommageant l’entrepreneur de toutes ses dépenses, de tous ses travaux, et de tout ce qu’il aurait pu gagner dans cette entreprise.’ See A. Fettweis and A. Delvaux, ‘La fin du contrat d’entreprise, du contrat d’architecte et du contrat de marché public de travaux ou de services (résiliation, résolution, décès et faillite)’, Act. dr., 1992, 387; C. Levintoff and P. A. Foriers, ‘De la réalisation unilatérale du contrat d’entreprise par le maître de l’ouvrage’, Entr. et dr., 1977, 21.

5See S. Stijns, D. Van Gerven, and P. Wéry, ‘Chronique de jurisprudence. Les obligations: les sources (1985–1995)’, JT, 1996, nos. 115 f.

6See Van Ommeslaghe, Droit des obligations, 72. A unilateral act is in principle irrevocable. On these questions, see ibid. 379. See also Stijns, Van Gerven, and Wéry, ‘Chronique de jurisprudence’, 689–90, 692–3, nos. 7–9; L. Simont, ‘L’engagement unilatéral’, in Les obligations en droit français et en droit belge (1990). For recent case law, see two decisions of the Belgian Cour de cassation: Cass., 9 May 1980, JT, 1981, 206 and Cass., 16 March 1989, Pas., I, 737.

may be binding.7 Others might find it to be enforceable on a different ground. For example, Simone might be liable because a person who suddenly withdraws an offer commits an abuse of right (see Case 8). Or she might be liable because there was a gestion d’affaires, literally, the management of another’s business: whoever searched for the necklace could claim compensation on the grounds that their intervention was necessary and urgent to protect Simone’s interests (arts. 1372–5 of the Civil Code).

the netherlands

In Case 14(a), Simone’s promise is binding. She concluded a conditional contract with Raymond, which created a conditional obligation for her.8 A contract cannot be revoked unilaterally.

In Case 14(b) she is not bound. An offer is revocable unless it is made irrevocable (art. 6:219 of the Civil Code9). The public offer Simone made was revocable. It did not contain a time period within which it could be accepted nor did anything about the offer imply it was irrevocable.

Nevertheless, art. 6:220(2) provides that ‘[i]n the event of revocation or modification of an offer of reward, the judge may grant equitable compensation to a person who, on the basis of the offer, has begun to prepare the requested prestation [performance]’. Therefore, if the fact that ‘others’ have incurred expenses looking for the necklace counts as beginning to prepare the performance, they may be entitled to equitable compensation. However, it does not seem likely that any member of the public who has looked for the necklace should be entitled to do so even if they incurred expenses. Therefore, it seems that beginning ‘to prepare the requested prestation [performance]’ should be interpreted quite strictly in case of an offer of reward made to the public. In any event, it is clear that she can withdraw, but not clear whether she has to pay compensation.

Even if the offer of reward had been made irrevocable by including a clause to that effect, it could nevertheless have been revoked ‘for serious

7The promisor can of course specify the scope of his or her commitment, for instance through the setting of a date at which it would lapse.

8On conditional juristic acts, see art. 3:38(1) of the Civil Code: ‘Unless the law or the nature of a juridical act produces a different result, a juridical act can be performed subject to . . . a condition.’ (In French: ‘Un acte juridique peut être assorti . . . d’une condition . . .’) On conditional obligations, see art. 6:21 of the Civil Code: ‘An obligation is

conditional where, in virtue of a juridical act, its effect has been made dependent upon a