With§311 (1)BGB, modern German law also appears to establish, besides the principle that partiesare free to conclude a contract, the requirement that parties have to conclude a contract if they wish to be bound.22 However, German law also recognizes certain pragmatic exceptions to that requirement, and one of them is the promise of reward: it is binding even if it has not been accepted (§ 657 BGB).23 French law, by contrast, perpetuates the tradition most clearly enunciated by Pothier, for it views a promise of reward as an offer ad incertas personas. Pothier’s ‘Traité des obligations’, translated into English by WilliamD.Evans in 1806, was the basis of the English doctrine of offer and acceptance, whereby only an accepted promise can give rise to a (contractual) obligation.24 Carlill v. Carbolic Smoke Ball Company demonstrates the difficulties associated with that view, for the success of Mrs Carlill’s action depended on the curious construction of a ‘unilateral contract’. According to Sir Guenter Treitel, the reasons for requiring the ‘acceptance’ of an offer which did not have tobecommunicatedtotheofferorare ‘largely doctrinal’.25 Heinrich Dernburg and Bernhard Windscheid had no such doctrinal compunctions when they either subscribed to what was usually called ‘pollicitation theory’ (Dernburg), or, while generally endorsing the contractual theory, acknowledged that it was hardly conceivable for the courts not to grant a claim to someone who had complied with the requirements fixed by the promise, even if the requirements for concluding a contract had not been complied with (Windscheid).26 The term ‘pollicitation theory’, incidentally, refers to Digest 50, 12 ‘de pollicitationibus’ which dealt with 22 For details, see Reinhard Zimmermann, ‘Vertrag und Versprechen: Deutsches Recht und Principles of European Contract Law im Vergleich’, in Stephan Lorenz (ed.), Festschrift für Andreas Heldrich(Munich: Beck, 2005), 467–84. 23 For historical and comparative perspectives, see Jens Kleinschmidt, ‘§§ 657–661a. Auslobung’, in Mathias Schmoeckel, Joachim Rückert & Reinhard Zimmermann (eds.), Historisch-kritischer Kommentar zum BGB, iii/2 (Tübingen: Mohr Siebeck, 2013). 24 A. W. B. Simpson, ‘Innovation in NineteenthCenturyContract Law’, LawQuarterly Review 91 (1975), 247–78 at 259. 25 Sir Guenter Treitel, The Law of Contract (10th edn, London: Sweet & Maxwell, 1999) 34. 26 Heinrich Dernburg, Pandekten(5th edn, Berlin: Müller, 1897), ii. § 9, 2; Bernhard Windscheid & Theodor Kipp, Lehrbuch des Pandektenrechts (9th edn, Frankfurt am Main: Rütten & Loening, 1906) § 308 n 5. part v • comparative legal history • reinhard zimmermann 238
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