3. Protecting reliance

comparisons 343

law will enforce one kind of promise on which the promisee would be particularly likely to rely: the cadeau d’usage, a present that has been made customarily to the promisee. It is enforceable whether the promisee has relied on it or not. According to the Belgian reporter, Gaston’s promise to his niece of a birthday present in Case 1(a) might qualify if he had given her such promises regularly.

A number of reporters suggested that where a valid contract was not concluded, a person might be liable in tort or for acting in bad faith for misleading the other party and inducing him to change his position (France, Belgium, Portugal, Italy, the Netherlands, Austria, Germany, and Greece). It is striking, however, that reporters from all these countries noted that the cases in which courts have actually found a person liable all concern misleading conduct preliminary to an exchange. Courts have not yet done so for breach of a promise to make a gift.

Arthur Corbin, who played a critical role in developing the American doctrine of promissory estoppel, once speculated on why it was not found in civil law systems. ‘[I]t would be unnecessary for the Roman and Continental jurists to develop an action in reliance doctrine’, he said, if their law ‘make[s] enforceable every promise on which it would be reasonable to rely.’9 We have seen the contrary. In continental law, with few exceptions, the promisee who relies on a promise of gift is not protected. The parallel with the United States is actually just the reverse of the one Corbin expected. American courts have enforced promises of gifts much less frequently than one would expect, given the broad formulation of the doctrine of promissory estoppel,10 and when they have, usually some additional element was present: the promisor had died before changing his mind,11 the gift was of land and the promisee had moved on and made repairs,12 or, as already noted, the promise was to a charitable organization or to people about to marry.

When one considers the matter, it is really not surprising that a person who relies on a promise of gift is protected so rarely. By hypothesis, the promise itself would not be enforceable absent reliance because the proper formality has not been observed. One reason for requiring the formality is that without it, one cannot be sure that the promise was made

9 A. Corbin, Corbin on Contracts (1963), 1A, § 196, at 199–200.

10See J. Gordley, ‘Enforcing Promises’, Cal. L. Rev. 83 (1995), 547, 573–9.

11E.g., Ricketts v. Scothorn, 77 N.W. 365 (Neb. 1898); Devecmon v. Shaw, 14 A. 464 (Md. 1888);

Sandoval v. Bucci (In re Estate of Bucci), 488 P.2d 216 (Colo. Ct App. 1971).

12E.g., Evenson v. Aamodt, 189 N.W. 584 (Minn. 1922). In that case, the court defended the result by drawing an analogy to the delivery of personal property.