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(imprévision). Therefore, these provisions are limited to the case to which they expressly apply. The result is the odd one we have seen. It was not reached by asking whether the lender is less worthy of protection when he commits himself before delivery. Thus it does not represent a decision as to how that question should be resolved.

b. Promises to take care of goods

In the Netherlands, Austria, Germany, probably in Portugal and Greece, and possibly in Spain, the parties are protected in the manner endorsed by the late scholastics and natural lawyers in the case of a loan for use. The promise is binding in advance of delivery. The reason, in the Netherlands and Germany, is that a contract of deposit is already formed. In Austria, probably in Portugal and Greece, and possibly in Spain, the reason is that even though such a contract is formed only on delivery, a promise to enter into such a contract is binding. Provisions in the civil codes of these countries allow the depositee to return the goods before the time agreed if he has an ‘important reason’ (the Netherlands and Germany) or a ‘fair reason’ (Spain and Portugal) for doing so, or if, due to changed and unforeseen circumstances, he cannot store them without harm to his own interests (Austria and Greece).

In Italy and France, a contract of deposit is formed only on delivery. In Italy, a promise to enter into such a contract is not binding in advance of delivery unless the promisor is acting in his own economic interest. In France, it may or may not be binding. In neither country may the depositee return the goods before the time agreed. Thus, sometimes in Italy and perhaps in France, the parties receive the sort of protection that Roman law gave to the parties to a loan for use. The agreement is not binding until delivery, but the depositee must keep the goods as long as agreed.

As in the case of a loan for use, it is possible that the parties would be protected in the same way in England. A promise to look after another’s goods without compensation lacks consideration, and so is not binding before delivery. Upon delivery, the arrangement is a ‘gratuitous bailment’, which, as before, is regarded as an exceptional case to which the usual rules do not apply. In England (though, according to the Irish reporter, not in Ireland), it is possible that a court would enforce the promise to keep the goods for a fixed term because it is ancillary to a gratuitous bailment. If so, the parties are protected in the same way that Roman law protected the parties to a loan for use; they are, at least if the depositee is not liable in tort, which is a possibility we will consider later on.

If he is not liable in tort, and if the promise is not enforced as one

350 the enforceabilit y of promises

ancillary to a gratuitous bailment, then, in England and Ireland, the depositee receives the most extreme form of protection: he can change his mind at any time for any reason or no reason regardless of the reliance of the depositor. As before, if a court reached that conclusion, the reason might not be a judgment as to how extensively he should be protected but a consequence of having only very general rules to apply.

Possibly, in Spain, Portugal, and Greece, the depositee may receive protection which is extensive but not so extreme. A contract of deposit is not formed until delivery, and possibly a promise to enter into such a contract may not be binding, although in Portugal and Greece, the prevailing view is the opposite. Moreover, as mentioned, in both countries, the depositee can return the goods in advance of the time fixed if he has a good reason. It is possible, then, that he has both the protection that Roman law gave the parties to a loan for use, and that which the late scholastics and natural lawyers endorsed.

In Belgium, possibly in France, and sometimes in Italy, the depositor may receive an extreme form of protection. In all these countries, a contract of deposit is formed only on delivery. Nevertheless, in Belgium, a promise to enter into such a contract is binding, in France it may or may not be binding, and in Italy it is binding if and only if the promise, though gratuitous, was made in the depositee’s economic interest. Moreover, in these countries, the debtor cannot return the goods even if he has an important reason, although in Belgium he might have a defence of force majeure if storing them is more costly even if it is not impossible. The depositor is protected, then, whether or not he has made delivery, whether or not he has relied, and the depositee is not protected, even if he has unanticipated costs.

In Scots law, the depositor is protected despite the depositee’s unanticipated costs if he relied with the depositor’s knowledge and acquiescence, provided both his reliance and the harm he suffers are material. He is also protected if the promise was made in the ordinary course of the depositor’s business. Delivery does not matter. Like the gratuitous borrower, the depositee therefore receives more extensive protection than many legal systems would give him. As before, however, that result may be due to the fact that the rule was laid down generally to apply to other situations as well.

The depositor who has relied may be protected in Irish and English law by an action in tort. In Ireland, as mentioned earlier, the plaintiff can recover in tort for pure economic losses, for the defendant’s nonfeasance