was not paid to the party who was to rent the ship, he had not entered into a contract of deposit with that party. After rejecting this claim as a mere technicality, the court observed: ‘a deposit may exist without the physical delivery of the thing in which it consists, as it may as well take place with the non-material or symbolic delivery’. As examples, the court cited the case of agricultural loans, in which the lender can keep as a deposit not only machinery and cattle, but also trees and future crops and harvests. Of course, one can say that delivery may be ‘non-material or symbolic’ without going as far as do scholars who believe that a promise to deposit can create an obligation even before delivery.

Once Otto and Charles have entered into a contract of deposit, Otto can ask Charles to return his furniture at any time (art. 1775 of the Civil Code), but Charles can only ask Otto to take the furniture back if there is a fair motive (art. 1776). According to legal scholars, examples of fair motives are a lack of space, a change in personal circumstances, the long term of a deposit, and the risk of loss of the goods deposited due to their nature.16 The motive must be genuine and asserted in a timely fashion. Motives which existed when the deposit was created and not alleged then are insufficient.17

If Otto does not accept the goods back, Charles can ask the court to accept the deposit (art. 1776 of the Civil Code).

portugal

In Case 5(a), Charles is certainly bound by the promise after the delivery of the furniture. It is possible that a court would consider him bound before he does so if both parties have agreed on establishing a legal obligation before delivery. If he is bound, the fact that he had an unexpected inheritance (Case 5(c)) would allow him to discharge the promise. The other circumstances mentioned in Cases 5(b), 5(d), and 5(e) are not relevant.

In Portuguese law, a contract of this type is a deposit (depósito), which is defined by art. 1185 of the Civil Code as a contract in which one of the parties gives the other one an object to be taken into custody and later returned. A deposit is a real contract quoad constitutionem. That means this contract is formed only with the delivery of the object to the person taking custody. This is an old form of constituting obligations, inherited from the

16J. L. Albacar López, Código civil: doctrina y jurisprudencia, 4th edn (1995), VI-1, 825.

17TS, 3 Oct. 1902 (the poor condition of horses and the cost of maintaining them was not a fair reason because nothing had changed since the deposit was accepted).

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Roman law, which is called a contract re (obligationes re contracta). Therefore, the classical idea, expressed in the legal definition of this contract itself, is that it does not create any obligation until after the thing to be deposited is actually delivered (datio rei).18

Nevertheless, this classical Roman solution has been questioned by some jurists who believe that it is contrary to the principle of freedom of contract. According to these writers, art. 405 of the Civil Code permits the parties to enter into any contract they wish. So there is no reason why the parties could not form a contract that is binding before the delivery of the thing to be deposited, even if the legal definition of deposit requires delivery. Presently, the majority of Portuguese legal writers support this new solution.19

Therefore, it is not clear how the courts would solve this case if the object is not delivered. After delivery, however, it is clear that a contract has been formed which is binding on Charles. Therefore, it does not matter at all if Charles was a friend of Otto, the antiques dealer from whom he had purchased the table and chairs, or a professional storer. He would have to fulfil the obligation.

Nevertheless, there are cases in which the deposit contract can be terminated earlier than the time agreed. Otto can ask Charles to return the deposit at any time (art. 1194 of the Civil Code) but Charles can only ask Otto to take the furniture back if there is a fair reason (justa causa) (art. 1201). A fair reason is an imprecise concept which can be interpreted in different ways.

According to legal scholars, a fair reason can be found in many different situations which can concern either party or even the thing deposited. Examples include the bad health of the storer, a sudden trip he has to make, and a call for service in the military.20 In my view, the unexpected inheritance would be considered a fair reason to terminate the deposit earlier than agreed.

The circumstances mentioned in Cases 5(d) and 5(e) have no direct relevance because if a term was agreed upon, Charles cannot terminate the deposit without a fair reason, and if he has a fair reason, the position of Otto is in principle not relevant. However, as the fair reason is evaluated by taking into account the concrete case, these circumstances might make it more difficult for Charles to terminate the deposit.

18See Lima and Varela, Código Civil Anotado, vol. II, 834.

19See C. M. Pinto, Cessão da Posição Contratual (1982), 14; Costa, Direito das Obrigações, 240–2; L. C. Fernandes, Teoria Geral do Direito Civil, 2nd edn, vol. II (1996), 58–9; A. M. Cordeiro,

Tratado de Direito Civil Português, vol. I (1999), Parte Geral, I, 260.

20See Lima and Varela, Código Civil Anotado, vol. II, 856.

italy

It makes a fundamental difference whether Charles refused to store the table and chairs before they were delivered or a month afterwards.

Delivery is fundamental because, according to the Italian Civil Code, a contract of deposit21 is not complete without delivery, and the obligations of the depositary arise from that moment.22 The depositary has a duty to keep custody of the goods delivered and to return them in their original condition.

The contract of deposit can be gratuitous. Indeed, according to art. 1767 of the Civil Code, it is presumed to be so. According to art. 1771, the depositary must return the goods as soon as the depositor asks for them, and the depositary can ask the depositor to take his goods back at any time unless a time limit in favour of the depositor has been agreed upon.23

If the goods have not been delivered, the problem is quite different. According to the case law, such a promise would not be enforceable if the promisor has no economic interest in its fulfilment because then it would lack a causa24 which is essential according to art. 1325 of the Civil Code. Often it would be considered to be a mere ‘courtesy promise’ that was not intended to have legal effects.25 The result would be different if the promisor did have an economic interest at stake: for example, if he was an antiques dealer or the promise was made by a professional storer of furniture for publicity.26

Legal scholars have discussed the problem of opportunities that are lost and harm that is caused to a promisee who relies on a promise that is not legally binding. Some have said that under circumstances like these, the promisor could be held liable for lost alternatives and for the expenses incurred in the expectation that the promise would be kept, although it is

21See, e.g., F. Mastropaolo, ‘Il deposito’, in Rescigno, Tratt. di dir. priv. (1985), 441.

22Article 1766 of the Civil Code: ‘Concept: Deposit is a contract by which one of the parties receives a movable thing from the other under a duty to keep custody of it and return it unchanged.’ A. Galasso and G. Galasso, ‘Deposito’, Digesto (1989), 253, at 255.

23Article 1771 of the Civil Code: ‘Request for restitution and duty to take back thing: The depositary shall return the thing as soon as the depositor requests it, unless a time limit in favour of the depositary was agreed upon. The depositary can at any time request the depositor to take back the thing, unless a time limit in favour of the depositor was agreed upon. Even if no time limit was agreed upon, unless a time limit in favour of the depositary was agreed upon, the court can grant the depositor an adequate time limit within which to accept the thing.’

24In the sense pointed out by R. Sacco, ‘Il Contratto’, in Vassalli, Tratt. di dir. civ. 6:2 (1975),

26See A. Gianola, ‘Verso il riconoscimento della promessa atipica, informale, gratuita ma interessata’, Giur. it. I (1995), 1921.

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not clear whether this liability would be contractual or extra-contractual.27 Whether it can be imposed is quite controversial.

In such cases, some scholars have tried to apply the concept of ‘just’ or ‘reasonable’ causa introduced by Gino Gorla. He recognizes that to enforce a gratuitous promise of a kind which is not governed by the Code has its costs. There is a social cost to triggering formal machinery for adjudication and a chilling effect on the willingness of people to make such promises. In his view, whether such a promise is enforceable should depend on balancing the harm the promisee would suffer from non-performance and his reliance on it against the cost of keeping the promise for the promisor and his own good or bad faith and reasons for refusing to perform.28

Some think that in such a case the promisor could be held liable under the rules of the Civil Code that govern pre-contractual liability imposed for lack of good faith (art. 1337 of the Civil Code).29 A court might impose such liability by interpreting the promise to receive and store the furniture as part of the negotiations for a contract of deposit which would be formed upon delivery.30 The liability is deemed to arise in tort, and so is limited to the amount by which a party has been harmed: the so-called ‘negative interest’ (interesse negativo) which would include expenses incurred during negotiations and the loss of other opportunities.31

austria

The contract of deposit is a ‘real’ contract in Austrian law, that is to say, a contract that is formed by delivery of the object in question (Civil Code § 957). The promise to store another person’s goods constitutes a pactum de contrahendo. It creates the obligation to conclude a contract of deposit. There is no special formal requirement for such a contract or agreement. The contract of depositum is gratuitous unless a remuneration has been agreed upon (Civil Code § 969). Not every promise to store goods, however,

27See Marini, Promessa ed affidamento, 295–7, 307, 313; Gorla, Il contratto, 180 n. 26; A. Checchini, Rapporti non vincolanti e regola di correttezza (1977).

28See Gorla, Il contratto, 180 ff.; Marini, Promessa ed affidamento, 297; but see also G. Venezian, ‘La causa dei contratti’, in Opere giuridiche, vol. I (1919), who affirms that those promises are not enforceable to any extent, and A. Ascoli, Trattato delle donazioni (1935), for whom this type of promise is a form of donation.

29On the rules governing pre-contractual liability affirmed by case law, see, most recently, Cass. civ., sez. III, 13 March 1996, no. 2057, in Foro it. I (1996), 2065; Cass. civ., sez. II, 1 Feb. 1995, no. 1163; Cass. civ., sez. II, 25 Feb. 1992, no. 2335.

30See Marini, Promessa ed affidamento, 295; Checchini, Rapporti non vincolanti.

31See Cass. civ., sez. II, 13 Dec. 1994, no. 10649; Cass. civ., sez. I, 30 Aug. 1995, no. 9157; see also Cass. civ., sez. III, 12 March 1993, no. 2973.

creates a legal obligation. If somebody only wishes to do another person a favour (Gefälligkeitsverhältnis), and does not intend to bind himself legally, no legal obligation is created.32

The promise will be binding if Charles intended to bind himself legally. This undoubtedly will be the case if Charles is the antiques dealer from whom Otto purchased the furniture or if he is a professional storer of furniture. In these two cases Charles’ promise belonged to his professional and not his private sphere. If, however, Charles is just a friend of Otto, such an intention probably will be absent (Case 5(b)).

In Case 5(a), if the furniture has been delivered, the ‘real’ contract of deposit is concluded. As mentioned, before delivery, there is only a pactum de contrahendo. In the latter case, according to § 936 of the Civil Code, the agreement is subject to a clausula rebus sic stantibus: if there is a significant change in the circumstances, the pactum de contrahendo can be cancelled. Section 936 applies only to such an agreement, and therefore not to the contract of deposit. Nevertheless, in Austrian law, any contract can become invalid because of changed and unforeseen circumstances (Wegfall der Geschäftsgrundlage, literally, the falling away of the basis of the contract).33 Consequently, it is really not clear what the difference is between § 936 and this general doctrine. With respect to the contract of deposit, one must also take into consideration that, according to § 962 of the Civil Code, the depositee has the right to return the stored goods to the depositor before the agreed time if, due to unforeseen circumstances, he is unable to store the goods safely or without harming his own interests. The consequence of § 962 is that it really does not matter whether Charles refuses to store the furniture before delivery or afterwards. He will have the right to do so either under § 936 or under § 962.

In Case 5(c), assuming that Charles’ promise is binding, § 936 of the Civil Code gives Charles the right to refuse to store the furniture because of changed circumstances. Consequently, he could refuse if he unexpectedly inherited furniture.34 If he merely changed his mind, neither § 936 nor § 962 of the Civil Code would apply.

In Cases 5(d) and 5(e), the question, of course, is whether these circumstances can be taken to indicate that Charles intended to bind himself legally. I think, however, one cannot conclude that he had such an

32G. Schubert in Rummel, ABGB § 957 no. 1.

33See P. Rummel in Rummel, ABGB § 90 nos. 1 ff.; G. Graf, Vertrag und Vernunft (1997), 131 ff., 276 ff.; A. Fenyves, Der Einfluß geänderter Verhältnisse auf Langzeitverträge (1997).

34If the furniture were already delivered to Charles, § 962 of the Civil Code would lead to the same result as the inheritance was unexpected.