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Yes, German law does consider gifts to be contracts of donation. Of course, just as in English law, there is the problem of whether to enforce gratuitous promises. German law solves this by the rule in par. 518 BGG according to which contracts of donation are void unless made by notarial act, but become valid upon transfer of the thing promised. While a donor is thus not bound to fulfill a gratuitous promise, he or she technically becomes bound the very moment of fulfilling it; in other words, a debt arises by the act of paying it, by which of course it is also extinguished.

This somewhat surprising idea of retrospectively making contracts of donation binding was introduced in order to counter a problem which might otherwise arise in the case where someone promises to make a gift and then actually makes it in the false belief that the promise was legally binding. Theoretically, it would then be possible to claim restitution of the gift by arguing that, at the moment of paying, you no longer intended to make a gift but merely to pay your debts, and that therefore there was no legal ground for your payment. In order to prevent any such argument, German law thought up this little sleight of hand to convert the gift into fulfillment of a contractual obligation. (As an aside, I wonder whether it would be possible under current English law to argue that you paid under a mistake of law because you thought that your gratuitous promise was binding on you.)

Apart from this somewhat academic problem, I am not sure whether adoption of the "legal ground" analysis would also require English law to hold that gifts are contracts, because, as I mentioned in my earlier posting, "legal ground" does not necessarily have to mean "enforceable contract". Of course, the gift-as-contract analysis solves the Meier/Zimmermann problem of distinguishing between mistakes in "forming the intention to give something" and mistakes in "executing this intention", because whether you can obtain restitution or not depends on whether there is a contract of donation. To use the example from my earlier posting again: If you only intend to give £100 but pay £1,000 instead, there is no contract of donation for the extra £900, and you can recover that money because there it was paid without legal ground. If you intend to give £1,000 but later discover you don't like the recipient and would never have given any money to him if you had known the full story, then whether you can recover your money depends on whether your mistake is of a serious enough quality to allow you to avoid the contract of donation. But to be frank I wonder whether this makes things any easier analytically, or whether it is just a roundabout way of restating the fact that you cannot recover gifts if you merely changed your mind, but only if you made a serious mistake.

Christoph Coen
Freiburg University, Germany