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obstacle since there are advantages and disadvantages to making it larger or smaller. The difficulty of making a gift is the greatest in Belgium. In principle, a promise to do so cannot be made enforceable. To have legal effect, a gratuitous transfer of property must not only be subscribed to formally before a notary but it must transfer the property immediately and irrevocably. The advantage is that the promisor can decide his promise was ill-advised up to the very moment when the intended beneficiary is to receive the property.

In most civil law countries, promises to make a gift can be made enforceable but only by completing a formality that requires the help of a legal professional: the promisor must execute a document containing the promise before a notary (France, the Netherlands, Italy, Austria, Germany, and Greece). This requirement is the descendant of the old Roman formality of insinuatio or registration before a court. While these systems will presumably enforce more ill-advised promises than Belgian law, they do recognize that the promisor may have a good reason for deciding to commit himself in advance. He may think his decision to make the gift is better advised than any later decision he may make not to follow through. He may wish to assure the promisee that the promise will be kept.

In three legal systems (Spain, Portugal, and Scotland), the formality is so simple that the promisor can complete it himself: he need only put the promise in writing. The advantage is that the promisor can decide for himself where and when to make a commitment. This decision may actually be better advised than the one he makes if he is forced to visit a legal professional. In any case, it need not be less deliberate since his reason for not visiting a notary might be, not that he is acting on impulse, but that he wants to avoid the trouble and expense. On the other hand, one can imagine many occasions – a birthday party, for example, or a visit to a favourite nephew – when he might act under the influence of a warm but transitory impulse. If he needs to see a legal professional, the impulse may pass, and he may receive some good advice.

In the common law jurisdictions, England and Ireland, an informal promise to make a gift is not enforceable because it lacks consideration. The promisor can commit himself irrevocably either by completing a formality or by establishing a trust.

The formality is to make a ‘deed’ which is ‘under seal’. In England, the promisor needs merely to state in a written document that it is intended to be under seal. In Ireland, he must still make some impression on the paper if only with the end of a ruler.

When a trust is established, ownership of the property in question passes from its owner, the ‘settlor’, to the trust. It is administered accord-

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ing to the settlor’s instructions by the trustee for the benefit of the trust beneficiary. A promisor who, like Gaston in Case 1(a), wants to give his niece a large sum of money on her twenty-fifth birthday, could deposit the money in an account and place the account in trust with instructions to dissolve the trust and pay her the money when she turns twenty-five but until that time to pay the interest to himself. He could even name himself as the trustee who is obligated to act on these instructions. If the trust is made irrevocable, he is committed.

A trust requires no formalities. In principle, a lay person could execute a deed under seal or establish a trust without the help of a lawyer. In practice, very often he will not. To the extent he does not seek help, the advantages and disadvantages are like those of Scots and Spanish law, although with an additional disadvantage: it is easier for the promisor who does without professional help to make a mistake that renders the promise unenforceable. To the extent that he does seek help, the advantages and disadvantages are like those of continental systems that require the help of a notary, although with the additional advantage that one does not need to pay the notary’s fee which can be quite high.

All of the legal systems, then, place obstacles in the way of making binding promises to give gifts, and the advantages and disadvantages of each depend on the size of the obstacles. It would be a mistake, however, to assume that all of the rules we have described were the result of a conscious decision about how large the obstacle should be. Sometimes such a decision was made. As we have seen, the drafters of the Belgian and Spanish Civil Codes broke with the pre-existing law governing promises of gifts in opposite ways. In Belgium, such promises became unenforceable. In Spain they became enforceable without notarization. Presumably, in each case, a decision was made about just how difficult gift-giving should be. Sometimes, however, decisions are made incrementally over time by adapting or finding new jobs for inherited rules rather than by tailoring a rule to produce exactly the results that it does. As we have seen, there are advantages and disadvantages to the formality of notarization as compared with that of a deed under seal. But civil law systems do not require the one formality, and common law systems the other, because anyone compared the two. Civil law systems require notarization because they substituted this formality for insinuatio. Some did so to make the formality more difficult and some to make it simpler.1 Notarization seemed appropriate because since the Middle Ages, this formality had replaced

1R. Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1996), 500–1 (comparing France and Germany).

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the Roman stipulatio in other transactions. Insinuatio had previously been required because the Emperor Constantine had thought it appropriate. Common law systems require a promise under seal because such promises were once enforceable in an action in covenant. Initially, that action was the only one that could be brought on an executory promise. Centuries later, when an action could also be brought in assumpsit, the seal acquired its modern role of making a promise enforceable when a promise lacked consideration as in the case of a gift. Today, as the Irish reporter mentioned, that formality is no longer easily understood and correctly performed by lay people. It no longer has the same advantages and disadvantages as it did when it was used by nobles with signet rings.

2. Exceptions for meritorious gifts

An alternative approach would be to enforce informal promises of gifts when, on the merits, the promise is unlikely to be ill-advised. The ius commune did so, in effect, when it created exceptions for promises to charitable causes (ad pias causas) and to those about to marry (propter nuptias).

Today, almost nothing is left of the first of these exceptions. In France, sometimes, in the past, promises of gifts to churches were enforced by characterizing them as exchanges because the promisor received some benefit such as hearing a church bell ring as it did in his childhood, or having mass said for his soul. In Germany, sometimes promises of gifts to a natural person who is to use them to benefit another have been upheld on the grounds that they are not really gifts if the recipient is obliged to give in turn to the ultimate beneficiary. But these are very exceptional cases. No system under examination will enforce an informal promise like that in Case 1(c) to the United Nations Children’s Emergency Fund.

A few legal systems do make an exception for promises to people about to marry (Case 1(b)). In Belgium, such a promise is considered to be one to fulfil a ‘natural obligation’, and is therefore enforceable. It should be remembered that in Belgium it is not possible to make a promise of a gift binding. Where the rules are rigid, it is not surprising to find a greater willingness to make an exception. In Germany, such a promise is binding under a specific provision of the Civil Code (§ 1624(1)) which says that what parents give a child because of marriage or to live an independent life is counted as a gift only to the extent that it exceeds what is appropriate to their financial circumstances. In England, such a promise has sometimes been enforced despite the doctrine of consideration. As we saw earlier, such promises were traditionally enforced before the rise of the bargain

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theory of consideration, and in this case, the tradition has continued despite it. In Ireland, by statute, such a promise is enforceable if the promisor complies with the fairly simple formality of putting it in writing.

One might think that these exceptions are less common today because culture has changed since medieval and early modern times. People then might have had more definite ideas of what should count as ‘pious causes’ and why they should be supported. Family ties and inherited wealth counted for more, and so promises to those about to marry were more important. But that cannot be the entire explanation, as we can see if we look briefly at the law of the United States. Promises of both sorts are enforced. For a long time, American courts said that the consideration for promises to charitable causes was the commitment of other subscribers to donate money,2 or the commitment of a charity to name a fund after the donor,3 to locate a college in a particular town,4 or even to use the money for charitable purposes.5 They said that the consideration for a promise to those about to marry was the marriage itself.6 With the rise of the doctrine of promissory reliance, American courts said that such promises were enforceable because the charitable organization or the couple had changed their position in reliance upon them. Yet the courts asked for proof of reliance so rarely that, according to the authoritative Second Restatement of Contracts, promises of both types are enforceable ‘without proof that the promise induced action or forbearance’.7 If modern conditions explain why the enforcement of such promises is rare in Europe, then it is surprising that they are enforced in the United States, and, indeed, enforced by using one fiction after another.

A better explanation is that the ends served by enforcing these promises are achieved in other ways in the societies that do not enforce them. In most of Europe, contributions to charitable causes play a less critical role than they once did and still do in the United States because European governments take much more extensive measures to safeguard the

2 Congregation B’nai Sholom v. Martin, 173 N.W.2d 504, 510 (Mich. 1969); First Presbyterian Church v. Dennis, 161 N.W. 183, 187–8 (Iowa 1917).

3 Allegheny College v. National Chautauqua County Bank, 159 N.E. 173, 176 (N.Y. 1927). 4 Rogers v. Galloway Female College, 44 S.W. 454, 455 (Ark. 1898).

5 Nebraska Wesleyan University v. Griswold’s Estate, 202 N.W. 609, 616 (Neb. 1925).

6Even then, in the famous case of De Cicco v. Schweitzer, 117 N.E. 807 (N.Y. 1917), it was hard to arrive at the desired result since the promise was made to a fiancé who, having already engaged himself to marry, was legally obligated to do so. Cardozo ingeniously observed that the affianced couple might still have given up their legal right to dissolve their engagement by mutual consent. 117 N.E. at 809–10. In effect, the parent’s promise

was treated as though it were made to induce them to marry should they no longer wish