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as well as misfeasance, and for breach of a duty that arises out of a relationship the defendant entered into voluntarily. In England, these are obstacles but in this case it is possible that they might be overcome. English courts have sometimes allowed recovery in tort for pure economic loss where the parties had a ‘special relationship’. For there to be one, the situation must be ‘close to contract’ and, typically, the defendant must act in a professional role. Supposedly, such an action can be brought only for misfeasance, not nonfeasance, but in this case the English reporter found this distinction of ‘dubious value’ since a depositor would then be liable if he did his job poorly but not if he did nothing at all. Perhaps a court would agree.

Thus, all of the solutions we have examined range between the two extremes of protecting the depositor against a cost he did not intend to incur and protecting the depositee against a harm he was not supposed to suffer. Again, the more extreme solutions were common in systems in which the rules in play were more general.

2. A broken promise to do a service

In Case 6, unlike Cases 5 and 7, the cost to the promisor of performing his promise has not changed. The promise could have been kept costlessly but, because it was not, the promisee was harmed. Consequently, the same concerns as before arise although in a different way. If the promisor is made to compensate the promisee, a promise that he expected to be costless will entail a significant cost to himself. If he does not, a promise that was intended to benefit the promisee will have harmed him.

Another difference is historical. In Roman law, as we have seen in Part I, commodatum and depositum were contracts re, formed only by delivery. As we have seen, that distinction has consequences in some modern legal systems. In contrast, a promise to do a service gratuitously was a contract of mandatum which was formed by consent. Consequently, in modern civil law systems, it rarely matters if anything has been delivered. The one exception is Italy, where, for a contract of gratuitous agency to be formed, documents must actually be handed over.

Moreover, in common law, as we have seen, delivery of goods as a loan or for safekeeping formed an arrangement called a ‘gratuitous bailment’ which was subject to special rules. There were no special rules for a promise to do a service gratuitously. Such a promise lacked consideration and so, as we will see, the promisor was not liable except possibly in tort.

352 the enforceabilit y of promises

A first question is whether one who promises to do a service gratuitously may be liable for failing to perform. In nearly all civil law jurisdictions he may be. In the others, he is liable only if some simple act or formality is added to the informal promise. In Spain, the agreement to mail a letter does not count as a mandato, which is the Spanish descendant of manda- tum, unless the promisor is to enter into legal transactions on the promisee’s behalf. Other gratuitous promises to do service must comply with the formality for gifts, which is the simple one of a writing. In Italy, as mentioned, documents must be handed over, as they were in Case 6. In Scotland, because the promise is gratuitous, it is not binding unless it is in writing, or it was given in the ordinary course of business (as in Case 6 if Richard sold Maria the plane). In Scotland, as before, the promise would also be binding if the promisee relied with the knowledge and acquiescence of the promisor provided both his reliance and the harm he suffers are material. Again, the degree of protection is extensive and the product of a general rule rather than one framed for this specific situation.

In England and Ireland, while the promise is not binding because it lacks consideration, the promisee who relies on it might recover in tort. The considerations are the same as in Case 5.

A further question is whether the promisor is held to the same standard of care and liable to the same extent as in the case of an ordinary nongratuitous contract. In Scotland, England, and Ireland, if relief is given at all, the standard of care would be the same as for a non-gratuitous promise. It is the same in Greece, and the standard is a high one, since fault is presumed, and to escape liability the defendant must prove accident or force majeure. The standard of care is also the same as in a non-gra- tuitous transaction in Germany and Austria where no special rules are applicable to an Auftrag, the descendant of mandatum. Nevertheless, the Austrian reporter thought that a court might escape that result by finding that the contract was subject to an implied clause excluding liability for ordinary negligence.

In contrast, the promisor is held to a lower standard of care in France, Belgium, the Netherlands, and Italy because of a special rule that applies to contracts of mandat, opdracht, or mandato, the descendants of the Roman mandatum. In Belgium, however, if Richard had sold Maria the plane, so that the promise was given in the course of his business, a Belgian court would consider it to be non-gratuitous. Richard would be held to the ordinary standard of care even if he did not charge anything for the service. In the Netherlands, he would not only be held to a lower standard of care but would be liable for less extensive damages.

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There are, then, three solutions: the promisor is held to the same standard of care as in other transactions; the promisor is not liable at all; and the promisor is held to a lower standard of care. These are three obvious ways to treat a transaction that can no longer – as the parties intended – be both costless to one party and helpful rather than harmful to the other. One can hold the promisor liable because favours should not lead to trouble. One can exonerate him so that the transaction will be costless. Or, following a middle course, one can exonerate him as long as he was not too negligent.

3. A note on the ‘intention to be legally bound’

In Cases 5 and 6, nearly all the reporters noted that the promise is not enforceable unless the parties intended to be legally bound, and that it is less likely that they did if they were friends. This issue is obviously quite important but also very difficult to understand. Clearly, the word ‘intention’ is used here in a strange sense. None of the reporters meant that the promisor must have had the conscious intention of incurring legal liability if he broke his promise. It is extremely unlikely that the promisor would have consciously considered that possibility. Therefore, what must be involved is some constellation of facts which do not concern the parties’ conscious intentions but which influence a court’s decision that a promise ought to be enforced.

It is hard to see what facts these might be. In Cases 5 and 6, the ones most frequently mentioned by the reporters were that nothing was given in return for the promise, and that, in some of the situations, the parties were friends. In Case 6, the German and Greek reporters said that a court would be more likely to conclude that the promisor intended to be legally bound if he knew the promise was important to the promisee. But how tricky it is to see what facts matter is illustrated by Cases 7 and 4. In Case 7, while some reporters mentioned that the parties must have intended to be legally bound, most of them took it for granted that they did, even though the car was lent gratuitously, and even when the lender was a friend. In Case 4, the parties were not friends. Moreover, while the transaction was not an exchange, each stood to gain from it. Carlo was to have the prestige of a dinner in his honour, and the music conservatory was to have the prestige of hosting a famous musician. Moreover, it was important to the conservatory that the promise be kept because of the expense that it incurred. Yet every reporter noted that the promise might be unenforceable since the parties might not have intended to be legally bound.