3 - Comparisons  pp. 337-392


By James Gordley

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We can now examine the similarities and differences in the results that European legal systems reach and the doctrines by which they arrive at them. We will first consider promises which are meant to confer a benefit gratis on the promisee, and then those that are not. We will ask to what extent these results can be explained as responses to common underlying problems. In the end, we will discuss how the problems we identify might be solved most straightforwardly.

Gifts and favours

We will consider promises to confer a benefit on the promisee that necessarily entail a significant cost to the promisor because he has promised money or property. We will then turn to those that could be performed costlessly.

Promises of money or property

Obstacles to giving gifts

None of the legal systems under examination will ordinarily enforce an informal promise to give away money or property. One reason is generally acknowledged: to prevent the promisor from making ill-advised gifts. Nevertheless, no legal systems prevent the promisor from making any gifts at all. Nor, with some exceptions to be noted, are any legal systems willing to consider on the merits whether a particular gift is well or illadvised. Instead, they interpose obstacles to gift-giving so that the wouldbe donor will deliberate.