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Most reporters thought it unlikely that they did; some thought it possible; one thought it likely.15 That is more of a consensus of opinion than in Cases 5 and 6. And yet, none of the facts that were said to matter in those cases seem to have mattered in this one.

When the parties are deemed ‘to intend to be legally bound’ is therefore an issue on which this study cannot shed much light. There is more agreement among the reporters in Case 4 than in any other about the result courts will reach and the doctrine by which they will do so. And yet the meaning of the doctrine and the facts that call for its application will have to remain a mystery.

C. What is left of Roman contract law?

It is common to say that Roman law was a law of particular contracts without any general principles governing what to enforce, in contrast to modern civil law, in which, as a general principle, agreements freely entered into are binding. We can now ask to what extent this view is correct.

One resemblance between Roman law and modern civil law is the survival in most of the systems we have examined of a special formality for promises of gifts of money. In Belgium, such promises cannot be made binding. In Scotland and Spain, they can be made binding by the simple formality of a writing, which is required in the case of other gratuitous promises as well. But in the other civil law systems we have looked at, modern law is like Roman law except that notarization has replaced registration.

In contrast, in most of them, the Roman distinction between contracts re and consensu has either disappeared or lost its original significance. Originally, the contracts of loan for use and deposit became binding on delivery. Today, in some legal systems, they are formed by consent; and in others, an agreement to enter into such a contract is binding. In a few systems, it is not clear whether such an agreement is binding in advance of delivery (loan for use in the Netherlands, deposit in Spain and possibly Portugal and Greece). Only in Italy has something like the Roman rule survived: loan for use and deposit are binding only upon delivery except in the case of a promise to accept a deposit made in one’s own economic interest.

15In some systems, it might be unenforceable on other grounds as well. In Spain and Scotland, it might be treated as a gift so that it would require a formality which, in these countries, is a writing. In England and Ireland, it would be unenforceable because it lacks consideration.

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It would seem, then, that except in the case of gifts, the voluntaristic principle has prevailed: contracts freely entered into are binding. If we look at some special rules that are applicable to these contracts, however, we may want to qualify that opinion. Nearly all civil law systems have a rule that the lender can reclaim his property if he now needs it (France, Belgium, the Netherlands, Spain, Portugal, Italy, Germany, and Greece). Only Austria and Scotland do not. Many have a rule allowing a depositee to return a deposit if he finds he needs the space for himself (the Netherlands, Spain, Portugal, Austria, Germany, and Greece). Many have a rule that a party who gratuitously promises to perform services is held to a lower standard of care (France, Belgium, the Netherlands, and Italy, and in Austria, this rule might be applied as a matter of interpretation).

If we ask why these rules have survived, the reason is not the triumph of the voluntaristic principle. These are rules which, in whole or in part, exempt a party from the consequences of a promise that he made voluntarily. The reason he is exempted seems to be that the promise was gratuitous and did not necessarily entail a significant cost to the promisor. The underlying concern, then, is that the promisor’s attempt to do a favour for the promisee should not have the unintended effect of making him poorer. That concern made sense to the late scholastics and the natural lawyers. They believed that one party should not grow poorer for another party’s benefit except as an act of liberality. Liberality meant not merely giving money away but giving it away sensibly. They approved of the Roman formality for making gifts because it encouraged people to be sensible. That rule and the one that holds the promisor to a lower standard of care are the two Roman rules that many legal systems still preserve. They invented the rule that a lender can reclaim his goods in case of unexpected need. Many modern systems not only have preserved that rule but apply it to deposits as well. These legal systems look neither voluntaristic nor Roman. They look much as they did before the rise of the will theories when jurists thought that, except for liberalities, a transaction should not reduce a party’s wealth.

II. Promises to pay for benefits received or owed

We will now turn to cases that are not gifts or favours, at least not in the same sense. The promise is made, not out of generosity, but to pay for a benefit received or to be received from the promisee. Of course, if the promise is made in return for a benefit that the promisee has not yet conferred and is under no obligation to confer, the transaction is an ordinary

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exchange. The enforceability of such a promise raises no special problems. This study will be concerned with cases in which the benefit has already been conferred, or in which the promisee is contractually obligated to confer it.

A. Promises to pay for benefits already conferred

In the case of a gift of money or property, one party intends to enrich the other at his own expense. A party who has already received a benefit, however, may promise compensation because he wants to even the scales. Unless the promise is enforced, he will have been enriched at the promisee’s expense. Many legal systems treat such promises differently.

In one type of case, the promisor received the benefit pursuant to a contract, and he would be obligated to pay for the benefit he received except that the contract is legally unenforceable. In another type of case, the promisor did not receive the benefit pursuant to a contract.

1. Promises to perform contractual obligations that are legally unenforceable

A contractual obligation might be unenforceable because it has been discharged in bankruptcy (Case 3(a)), or barred by the passage of time (Case 3(b)), or because it was incurred by a minor (Case 3(c)).

Once, common law courts enforced promises to pay debts that were unenforceable in all three situations. Such promises were said to have ‘moral consideration’. As we have seen, however, they could not be explained by the formulation of the doctrine of consideration that became generally accepted in the nineteenth century. The promisor did not promise to induce the promisee to do anything in return but rather on account of something the promisee had done in the past. Today, the promises to pay a debt discharged in bankruptcy or barred by the passage of time are not enforceable in England or Ireland. They still are in the United States where these exceptions to the normal requirements of consideration have been preserved.16 The change in England and Ireland may be due to a desire for doctrinal consistency rather than a decision about how these specific situations should be treated. The promise to pay the debt incurred as a minor would still be enforceable in England but it is

16Restatement (Second) of Contracts (1979), §§ 82, 83, 85. Nevertheless, the Bankruptcy Reform Act, 11 U.S.C. § 524 severely limits the enforceability of a promise to pay a debt discharged in bankruptcy.

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regarded as an anomaly. It would not be enforceable in Ireland. A statute provides that such a promise will not be enforced even if it is given for fresh consideration.

Many of the civil law systems under examination would enforce these promises. Sometimes it is said that the promisor had a ‘natural obligation’ to the promisee which, after the promise is made, becomes a legally enforceable civil obligation; sometimes that the promise ratifies the obligation or waives a defence to it.

In France and Belgium, all of these promises would be enforceable. Case 3(a) could not arise in Spain, Portugal, Austria, or, until recently, in Germany because debts are not discharged in bankruptcy. But the other promises would be enforced in these countries. In Italy, the promise to pay such a debt discharged in bankruptcy would not be enforced because Italian law does not recognize the doctrine that promises to pay natural obligations are enforceable. Nevertheless, the other two promises would be enforced on the grounds that a debt has been ratified. In the Netherlands, although the other promises would be enforced, the one in Case 3(c) to pay a debt incurred as a minor is considered to be a promise of gift, and therefore unenforceable without a formality.

The only civil law systems that would refuse to enforce all of them are Scotland and Greece. In Scotland, however, as in the case of gifts, promises can be made binding by complying with the fairly simple formality of reducing the promise to writing. As before, however, this result is the consequence of a general rule applicable to all gratuitous promises. It may not represent a decision about how these specific situations should be treated. In Greece, special provisions of the Civil Code reduce the difficulty of complying with the formality. Promises to pay obligations barred by the passage of time or incurred as a minor need only be in writing even though promises to make gifts must be made before a notary. Since, in Greece, debts are not dischargeable in bankruptcy, Case 3(a) could not arise.

The formality of appearing before a notary is almost never required. The only exceptions are Case 3(a) (discharge in bankruptcy) in Italy and Case 3(c) (debt incurred as a minor) in the Netherlands.

If the reason for refusing to enforce an informal promise of gift is to protect the promisor from himself, then it is not surprising that the formality is not generally required in cases like these. In the case of a gift, the promisee is enriched at the expense of the promisor. In these cases, the promisor has been enriched at the expense of the promisee even though no gift was intended. It is the promisee who has been hurt. In each case,

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moreover, the law has erected a barrier to the enforcement of the original obligation on account of certain fears which, to a large extent, the new promise eliminates. Where debts are dischargeable in bankruptcy, the fear is that if they are not, the bankrupt’s entire future will have been sacrificed by his improvidence or bad luck in the past. The new promise, at least if it is made advisedly, removes the fear that he will be unable to pay without such a sacrifice. Debts become time-barred, in part, because of a fear of trumped-up claims, and in part, because the debtor may have changed his position in the belief that the creditor will never insist on payment. When the debtor acknowledges the claim, those concerns are removed. The promises of minors are not enforced for fear that their judgment may not be as good as that of an adult. That fear is removed when the promisor confirms it after becoming an adult.

2. Promises to pay for benefits received absent a contract

The matter is more difficult when a promise is to pay for benefits that were not conferred pursuant to contract. An example is Case 2 in which Kurt promises a large sum of money to Tony who suffered a permanent back injury saving either Kurt or Kurt’s adult child. Here, Kurt was never under a legal obligation to pay for Tony’s services except possibly, in Portugal, Austria, and Germany, where he might be held liable on the grounds of unjust enrichment because the services were rendered under circumstances of urgent need (negotiorum gestio, Geschäftsführung ohne Auftrag). Where Kurt is not liable, his promise must not merely remove a legal barrier to what would otherwise be an enforceable obligation but create a legal obligation where previously there was none.

In some of the legal systems, the promise might have this effect. In others it would not. One approach, as before, would be to enforce it on the grounds that it is a promise to fulfil a natural obligation. The French, Belgian, and Austrian reporters believe that their courts would do so, although in France, Tony would have the evidentiary problem that he must either produce a writing or show that it was morally impossible to obtain one. The Greek reporter believes that her courts might enforce the promise on these grounds. Although there is no clear authority in the Netherlands or Spain, the reporters from these countries are doubtful, the Dutch reporter because his courts have held that promises to pay for past services are gifts, and the Spanish reporter because her courts have recognized natural obligations primarily in the context of family relationships. The Belgian and Spanish reporters thought that a court would be less

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the rescue was performed and before Kurt’s promise was made was also suggested by the French reporters. Although it involves twisting the usual doctrines that govern contract formation, the act of rescuing might be considered an ‘offer’ which Kurt tacitly accepted, thereby forming a ‘contract of rescue’ (convention d’assistance).

In Scotland, neither promise would be enforceable unless it were made with the formality required for promises of gifts, which is a writing.

To sum up, in two legal systems (Italy and Scotland), Tony would have no claim of any kind (although in Scotland, the formality required is the simple one of a writing). In two others (England and Ireland), Tony would have an action only if Kurt said something before the rescue that could be interpreted as a request to render services. In Portugal and Germany, Tony could have a claim in unjust enrichment only for rescuing Kurt himself, and to be enforceable, the promise must be interpreted as an acknowledgment or settlement of such a claim. In Spain, he might have a claim because the promise is a donación remuneratoria. In the remaining legal systems, the promise might be enforceable as one to fulfil a natural obligation, a result that seemed likely to the reporters from three countries (France, Belgium and Austria), possible to one reporter (Greece), and doubtful to another (the Netherlands).

In contrast to Case 3, then, there is fairly widespread agreement that this case presents a problem, and much less agreement about what to do about it. In part, the reason is that promises are made in cases like this far less often than promises to pay debts that are discharged in bankruptcy, time-barred, or incurred as a minor. Most legal systems have had less experience with such promises, and consequently less opportunity to decide what to do.

In part, however, the reason may be that in this case, it is less clear what should be done. As in Case 3, the promisor has benefited at a cost to the promisee even though no gift was intended. Moreover, as in Case 3, one might regard the promise as removing an obstacle that would otherwise exist to an enforceable legal claim, here, a claim in unjust enrichment. As we have seen, only the Portuguese, German, and Austrian reporters regarded such a claim as possible. There is a good reason why most jurisdictions would not recognize such a claim and why the German and Austrian reporters were uncertain and the Portuguese reporter was sceptical that it would succeed even in their own countries. Even in a case as extreme as a rescue, it is hard to be certain that the promisor wanted the services and how much he would have been willing to pay for them had

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he been asked in advance. Presumably, if Kurt thought he would die without the rescue, he would have been willing to pay almost any amount, and one hopes he would feel that way about his adult child. But Kurt might not have thought the danger was so great that he would be willing to pay for whatever harm Tony suffered in rescuing him. To some extent, the promise removes these doubts. Kurt evidently did want to be rescued, and, at least when he made the promise, he was willing to pay the promised amount.

But the promise removes these doubts only to a certain extent. Kurt might have made the promise even if he thought he was in little or no danger because he felt grateful that Tony wanted to rescue him or sorry that Tony had suffered in doing so. If so, although these are noble motives, one can no longer say that Kurt was trying to compensate Tony for a benefit Kurt received. If Kurt thought he was in danger, he might still promise Tony more than the amount needed to compensate for the back injury, and, at the time Kurt promised, he may not have been aware of the extent of the danger. Thus the promise does not remove the obstacle to a legally enforceable claim – here a claim for unjust enrichment – as clearly as the promise of a former bankrupt, who presumably does think he now has sufficient funds, or the person owing a time-barred debt, who would presumably not promise if the creditor’s claim were groundless, or the person who incurred a debt as a minor, who presumably now does have the judgment of an adult. There are good reasons why legal systems are less certain and unanimous.

3. Promises to pay an additional amount when a benefit has already been received and paid for under a contract

In Case 10(b), Company agrees to pay an additional amount to an employee who is about to retire. We will defer consideration of this case until we see how the different legal systems treat promises to pay more than originally agreed for benefits one is yet to receive under a contract.

B. Promises to pay for benefits to which one has a contractual right

We will now turn to promises that modify the terms of a contract to make them more favourable to the promisee. In Case 9, the promise is to pay more than agreed originally for remodelling or for equipment; in Case 10(a), to pay a larger salary; in Case 11, to install more expensive windows

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or to waive the requirement of an architect’s certificate; in Case 12, to lower the rent (assuming the promise is interpreted as a reduction in rent and not a postponement of the time it is due).

Most legal systems do not treat these promises like promises to pay for benefits one has already received. There is far less difficulty about enforcing them absent some distinct ground for relief such as duress.

Absent such a ground for relief, all of the civil law systems we are examining would enforce all of these promises with four exceptions. In Scotland, the promise to lower the rent in Case 12 would have to be in writing because it concerns an interest in land. In Spain, the promise in Case 9 to pay more for remodelling or equipment would not be enforced, even absent duress, because a mere change in the amount owed does not constitute a novation. In contrast, the promise to reduce the rent in Case 12 would be valid because it is the remission of a debt. In Portugal, the promise in Case 10(a) is unenforceable because it is considered a gift and lacks the requisite formality. Nevertheless, the promisor may be liable for violating a pre-contractual duty to act in good faith. Also in Portugal, the promise to do without an architect’s certificate in Case 11 is illegal, and therefore unenforceable.

In civil law systems other than Scotland, these promises are enforceable because they are not considered to be gifts. In Scotland, the promises in Case 11 might be regarded as gratuitous, but they would be enforceable anyway absent the usual formality because they are made in the course of business. In addition, in some civil law jurisdictions the promise of a higher salary in Case 10(a) does not raise a problem because the employee has a right to leave despite the terms of his contract. The employee’s initial promise to work for a fixed term for a certain salary was either invalid (Italy) or one which the employee is entitled to break although if he does he will be liable for an indemnity (Belgium) or for damages which, as a practical matter, the employer cannot recover (Spain).

In the common law jurisdictions, at one time, all but one of these promises would have been unenforceable on the grounds that they lack consideration. The exception is the promise in Case 11 to dispense with the requirement that an architect certify that the building has been properly completed before the builder is paid. It does not need consideration because it is a waiver of a condition. It would be enforceable at least if the builder changed his position in reliance upon it.

Today, only the builder’s promise to install more expensive windows would be unenforceable for lack of consideration. Absent duress, the promises to pay more money in Cases 9 and 10(a) would be enforceable as

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long as the promisor receives a ‘practical benefit’ even if the benefit is the performance of a pre-existing legal duty.

The promise to reduce the rent in Case 12 is enforceable under the doctrine of promissory estoppel. Under this doctrine, the promisor may be bound by a promise that does not have consideration. In England and Ireland (unlike the United States), the promisee can invoke this doctrine even if he has not changed his position in reliance on the promise. The limitation (again, unlike the United States) is that the doctrine can be used only as a shield, to defend against a claim, and not as a sword, to raise one. In Case 12, the doctrine is used as a shield because the lessor is suing for the back rent. Thus, not only will the common law systems enforce these promises, but they have carved out exceptions to the general requirement of consideration in order to do so.

Nevertheless, if the promisee threatened not to perform unless he was promised more (as in Case 9), the promise may be unenforceable on the grounds of duress. The only exception was in Portugal where the threat must be to perform an ‘illegal act’. All of the other reporters agreed that it would be unenforceable if the promisor would suffer imminent and serious harm if he refused to comply, although they disagreed on whether this requirement was met in Case 9. Seven reporters thought it probably was (Belgium, Italy, Austria, Germany, Greece, England, and Ireland); two thought it might be (France and the Netherlands); and two thought that it was not met (Spain and Scotland). Three reporters thought that relief might be given even absent duress for ‘abuse of circumstances’ (the Netherlands), or for exploitation of another’s need (Portugal and Greece).

Absent duress, then, the legal systems we are examining are far less reluctant to enforce the promises in these cases than to enforce promises of gifts. With gifts, where the promisee is to be enriched at the promisor’s expense, there is a concern that the promisor act with deliberation which we do not find here. The reason may be that, absent duress or some other ground for relief, such a promise is regarded as a revaluation of the promisee’s performance rather than an enrichment of the promisee. It is made in a business context. The promisor has no reason to be altruistically interested in the promisee’s welfare as he did when he promised a gift in Case 1. He has no reason to feel grateful as he did when he made a promise to his rescuer in Case 2. If he is promising more, very likely he feels that the performance he receives in return is worth it.

Originally, of course, a different value was placed upon the same performance. By doing so, one might think, the parties have allocated the risk

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that the promise will prove more or less valuable. It is no different, one might think, than when the value of a share of stock or painting rises after it has been sold. The profit belongs to the buyer. If he shares it with the seller, he will be enriching him just as if he makes a gift. But that argument presupposes that the parties meant to allocate this risk between them when they originally fixed the price. In cases like 10(a), 11, and 12 they may not have. When a person is hired (Case 10(a)) or property is leased for a long period of time (Case 12), it is usually hard to know what the value will be in the future. The reason the parties did not expressly agree to determine this matter in the future may be that they would have had to agree upon how it is to be determined. That is tricky if they want to make a firm commitment to each other now and do not want the matter determined by third parties. Consequently, they might fix a salary or rent with the expectation that it will be adjusted if the employee proves to be more valuable or economic conditions alter the value of the lease. When the contract is not long term, as in Case 11, the parties still might expect each other to be flexible about such matters as deadlines or the quality of the windows without each change calling for a renegotiation of the price. The fact that one party agreed, absent a threat, to modify the contract in the other’s favour suggests that they did have such expectations. In contrast, in the situation described in Case 9, Paul would not have expected that he might have to pay 50 per cent more than he had agreed a short time ago when Robert’s circumstances have not changed. Consequently, he would not have made such a promise if he had not been threatened. His promise is not a revaluation of the value of Robert’s performance but a response to the harm that Robert can cause him.

We can now turn to Case 10(b) and see why it is less clear. To thank Vito for his services, Company promised him a large sum of money at the end of his term of employment after he had already announced his intention to retire. In France, the Netherlands, Spain, and Portugal, the promise would be considered a gift, and therefore unenforceable without the usual formalities, although in Portugal, the promisor may be liable for violating a pre-contractual duty to act in good faith. In England and Ireland, it would be unenforceable for lack of consideration, although the Irish reporter noted that it could be made enforceable by having Vito promise some small undertaking in return such as to retire early or not to compete with Company. In Belgium and Greece, it would be enforceable as a promise to fulfil a natural or moral obligation. In Austria and Germany, it would be enforceable because it would be deemed part of or linked to the employee’s past services. In Italy, it is supposed to be unen-