A Rationale of Gifts and Favours
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00358.x |
| Date | 01 May 1956 |
| Published date | 01 May 1956 |
| Author | S. J. Stoljar |
THE
MODERN LAW REVIEW
Volume
19
May
1956
No.
3
A RATIONALE
OF
GIFTS
AND
FAVOURS
Doctor:
But what opinion hold they that be learned in the law
of England in such promises that be called naked
or
nude
promises?
.
.
.
Student:
The books of law of England entreat little thereof, for
it
is left to the determination of doctors; and therefore
I
pray thee shew me somewhat now of thy mind therein, and
then
I
shall shew thee somewhat therein of the minds of
divers that be learned
in
the law of the realm.
Christopher St. Germain.
(1580)
WHILE people constantly make or promise gifts and do and
promise favours, these benevolent activities have
no
official rubric
in
English law. English law,
so
runs
the classical explanation,
will not enforce a gratuitous promise not made by deed;
nor
will
it
disturb an executed benefaction however ungrateful the
beneficiary may be.l Nonetheless
it
simply is not true that even
informal gratuitous arrangements have never been given positive
legal treatment. What is true is that, rather than open and direct,
'this treatment has been
ad.
hoc
and sporadic, and peculiarly
involved within more prominent fields of legal commerce. One
such involvement has been with the law of contract and con-
sideration; another with trusts and other equitable doctrines; a
further liaison has long existed with bailment and the law of
agency; and
a
significant link can also be discovered with the
tort of misrepresentation. Thus
on
the periphery of traditional
doctrine, a surreptitious law of gifts has led a precarious as yell
as promiscuous existence. *We therefore need to reconsider a
wide range of situations to assess their practical results and to
1 These propositions are so firmly established that authority is hardly required:
but see,
e.g.,
Jenka'
English
Cioil
Lou,
(4th ed.,
1947)
80.
Nor
1s
the legal
justification
for
these rules an where clearly given, though it is
to
some
extent implicit: since ifts
an2
favours are purely private and sentimental
arrangements, no usefuf purpose would be served by legal intervention
See
genefally Fuller,
Conaideration
ad
Form
(1941) 41
W.L.R.
799
at
8i~
and
passim.
287
288
THE
MODERN
LAW
REVIEW
VOL.
19
promote their integration.’ In the end we shall arrive at a truer
picture of how the law has treated executory and executed gifts
and how
it
treats favours.
METHODS
OF
ENFORCING
GRATUITOUS
PI~OIKISES
We must, as a first step, renew acquaintance with
Shadwell
v.
Shad~ell,~
even though
it
is a notoriously well-known decision.
An affectionate uncle promised an annuity to his nephew, who
was a young barrister engaged to be married. The uncle wanted
to assist him
“
at starting,” but nfter the nephew’s marriage not
all the annuities were paid. The straightforward issue was whether
or
not this promise of financial help was enforceable; and looking
at
the facts without legal pre-conceptions,
it
is clear that this was
a gift-situation of a very typical kind. There was here no element
of bargain, no sly calculation to procure a marriage
4:
the promise
was just
“
an
act of kindness,”
an avuncular gesture
of
not infrequent happening. With less
goodwill the uncle could equally have said,
“
I
will give you
2500
if
you break your leg.”‘ The broken leg, like the previous
marriage, were not meant as an inducement
or
incentive; they
were meant as the occasion
or
condition
for
the payment
of
the
gratuity. In other words, there was here no room for “con-
sideration,”
if
consideration is taken in its primary sense that
differentiates gifts from bargains. Yet to make the uncle’s
promise enforceable, within the law
of
contract, a valuable con-
sideration had to be found. This the court did find in
an
ingenious manner. First, the nephew was said to have suffered
a
detriment,
for
he “made the most material changes in his
position,
. .
.
and may have incurred pecuniary liabilities resulting
in embarrassments which would be in every sense
a
loss
if
the
income that had been promised should be withheld
”
*;
secondly,
a
For
u
similur uttem
t,
see Shuttuck,
Gratuitous Promises-A new Writ?
(1937)
85
Michigan
E.R.
908.
Although
I
have leurned greutly from this
geper,
my
own
unul sin und conclusions ure subetuntiully different. Especially
uve
I
tried to Live home
u
morel where Shuttuck remained ruther
inconclusive.
8
(1860)
9
C.B.(N.B.)
159;
for
fuller discuseion nee Cheshire and Fifoot,
Law
of
Contract
(3rd ed.,
1952) 79
et aeq.;
A.
G.
Duvie,
Promises
to
Perform
on
Existing Duty
(1937)
6
Cumb.L.J.
208.
See
also
Corbin,
Does
a
Pre-
Existing Duty Defeat Consideration?
(1918) 17
Yule
L.J.
862,
Selected Reud.
604.
a
u
mere voluntary courtesy,”
4
See
note
8,
infra.
6
See urgument of couneel,
(1860) 9
C.B. at
171.
6
Cf.
Lampleigh
v.
Brathwait
(1616)
Hob.
106.
As
pointed out by B les
J.
(1860)
9
C.B.
ut
177;
and see
on
this
the
prepunt wmurks
in
dlmes,
The Common
Law
(1881)
292298.
8
Per
Erle C.J. (und Keuting J.)
(1860)
9
C.B. ut
174.
In
the next line
the leurned judges
,Fuke
the additionul suggestion thut the uncle’!, promise
wus perhups made
to
induce the perties
to
murry,”,,so thut the promise
BO
mude would
be
in legul effect
u
re uest
to
marry.
But if this
wue
80,
there would huve been
no
difficulty
to
‘Xnd conaiderution since ucts rformed
upon
re
ueet huve
ulwa
s
been enforceable more
or
less
us
burguine:
J%npZeigh
v.
Bra&wait
(1615)
dob.
105; 1
8m.L.C.
148, 161
et rep.
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