6 Book 3, title 3, and section 1370, Civil Code. 7 Sections 1108 seq.
Now we understand very well that a unilaterally expressed intention ought never to be enforceable except when it was seriously and firmly held with the conscious desire that it should be binding. However, in a good many instances, and in the absence of some customary or statutory form of expressing the intention, it will be difficult and not without danger to hold every promise, where the promisor at the time wishes to be bound, sufficiently serious and firm. It will be wise, therefore, to scrutinize carefully the character of such declarations and to assess them at their true psychological value. Likewise, even where the firm intention cannot be disputed, one would not be able to appreciate its true legal weight without first determining whether there exists a real interest of society requiring that such a declaration be binding of itself without waiting until the party to derive the benefit therefrom has consented and thereby raised it to the dignity of a contract in the proper sense. This determination will be the result of an investigation of the moral, political, economic, in fine all the social, advantages of such promises.
From this point of view, we shall be inclined to declare binding not all one-sided promises, but only those which seem necessary in order to accomplish certain desirable social ends which cannot be accomplished in any other way, provided that they are not of such a nature as to create an uncertainty regarding the title to property, which is above all other things destructive of credit. Such binding declarations will be, no doubt, promises to pay for services rendered, subscriptions for the costs of a work to be done in the common interest, offers made in contemplation of a future contract, provided they are made with sufficient certainty; and perhaps even promises for the endowment of benevolent institutions, provided the principles of our public law are properly observed.
If we boldly recognize such promises as binding of their own force, we merely carry out'and follow tendencies which, after all, are already clearly established in our legal system. For instance, in our private law, it may be true that the one-sided promise of compensation, as in the case of finding lost property, has never been recognized except on the ground of a tacitly implied contract between the promisor and the finder; yet the law does not hesitate to recognize rights growing directly out of a mere promise in other relations. At any rate, the binding character of an offer by one party to enter into a contract is at present frankly recognized during the time customarily allowed for acceptance by the other side. Again, the same is true in the case of commercial paper payable to bearer, independently of the contract from which the debt originated; or, in the cases where mortgage liens are upheld as security for debts payable to uncertain payees. Finally, the principle is illustrated by the cases where undertakings for the benefit of another are upheld although there is no principal contract actually in existence. All these instances show plainly that our law tends to go beyond the narrow horizon of the Civil Code and to admit that by the side of the traditional classes there may be cases of binding voluntary obligations outside of any specific contract.
The same is true also in the field of administrative law. Here many of the requirements of the law of civil contracts are disregarded and subscriptions to benevolent purposes or works of public utility are much more easily held binding; here, where legacies to undetermined recipients of charity are upheld on condition that the beneficiaries can be made certain, even actual endowments by one-sided promise are possible "inter vivos" on the same condition.
When we extend our experimental test somewhat and consider the same problem by the light of history and comparative legislation, we shall find a decided confirmation of our reasoning and direct observation. We shall see that even the Roman law, which in principle rejects emphatically the recognition of a one-sided promise as the source of a binding obligation, yet admits promises of this kind as civilly binding in cases where a religious or public interest is involved, and possibly even sometimes in cases of purely private concern. Other legal systems will be found to offer different instances in accordance with the peculiar needs of their time and circumstances. Finally, the most recent and most thoroughly studied of modern legal systems, the German Civil Code of 1896, furnishes us what might be called the type of an actual, positive system of this kind, which is quite capable of serving as a model. Is not all this proof enough, drawn from the actual facts, that no absolute principle of logic commands us to reject a priori the creation of valid rights by a one-sided exercise of will, and that, quite the reverse, the needs of legal life require, not that all one-sided promises be held binding, blindly and without distinction, but that this be done in certain carefully regulated and judiciously selected instances. A free investigation of all the circumstances - including scientific data as far as possible based on statistics and every other means of learning social facts, as well as ethical, political, and economic considerations - should determine the cases and conditions in which in the actually existing state of civilization in France it would be advisable that the power of autonomous exercise of will over private relations should receive this extension, and technical considerations of law should be utilized merely to define these instances more accurately.