Promises Are Tough to Enforce Without a Contract

This week’s question comes from Shelia D. in South City, who asks:

Q: “I am really upset about what my uncle recently did. He had, since I was young, promised me that he would give me his Camaro when he got a new car. He got a new car and, instead of giving his old car to me, he gave it to his son, who he just made up with after years of hating each other. I feel that the car should be mine. Can I do anything to get the car?”

A: Shelia, your situation is one that many people encounter: the enforceability of a promise. The law has examined this question in many forms over the years. The enforceability of agreements is analyzed under the law of contracts. A contract involves an offer, acceptance and what we call consideration.

In short, someone must make an offer to sell or do something; the other party must accept the offer and something of value must be exchanged (consideration).

If, following the formation of the contract, the party who made the promise fails to perform the promise (do what they offered) then a legal action can be brought to enforce the contract. If the offering party keeps their promise, and the consideration is not delivered, then they may sue to enforce the contract and recover the contract price (amount or type of consideration). Some things promised will not be enforced — those which are illegal or against public policy, such as gambling debts, purchase or sale of drugs or other unlawful conduct.

Shelia, in the situation you describe, there is no contract. There is a gratuitous, unenforceable promise of a gift. It is a unilateral promise without consideration. California Civil Code Section 1146 defines a gift as “a transfer of personal property, made voluntarily, and without consideration.” Section 1147 says that a verbal gift is generally unenforceable, unless the means of obtaining possession and control of the thing are given.

Three things are necessary for a valid gift: (1) there must be an intent, on the part of a donor/giver having capacity to contract, to make an unconditional gift; (2) there must be an actual or symbolical delivery, such as to relinquish all control by the donee/giver; and (3) the done/receiver must signify acceptance, except where it may be presumed. In this case, you never received the car.

Under the donative-promise principle, a simple, unrelied-upon donative promise is unenforceable. In the past, this principle has been explained largely on the ground that a rule, under which such promises were enforceable, would involve significant process problems.

Legal scholars have explained this principle as follows: “The world of gift would be impoverished if simple donative promises that are based on affective considerations, such as love or friendship, were folded into the hard-headed world of contract.”

In the past, the courts have ruled that “the major reason given for the rule against enforcing gratuitous one-side promises has been that significant process problems would result if simple donative promises were enforceable — for example, it would be very easy to falsely to convince a jury that such a promise had been made — and that the substantive reasons for enforcing simple donative promises were too weak to outweigh those process problems.”

Like all areas of the law, there are exceptions to this rule. For example, if you had done something in reliance upon this promise, like paying for maintenance, repairs or registration, you might have a claim that your uncle should be required to transfer the title to you under a theory called promissory estoppel.

This means that the consideration or value that can be used to enforce the contract might be proven if, because of the promise, you relied upon the promise to your disadvantage. From the limited facts that you have provided, unfortunately, I do not see an enforceable promise here.

In closing, I will provide one of the most unique promises that the law recognizes as an exception, i.e. the engagement ring.

California Civil Code Section 1590 states that where either party to a contemplated marriage in this California makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the receiver of the (ring) property refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the giver may recover such gift (ring etc.) or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to

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