Chapter XI: On Promises

Opinion, that the obligation to fulfil promises is not enacted by the law of nature, refuted—A bare assertion not binding—A promiser bound to fulfil his engagements, though no right to exact the performance of them, is thereby conveyed to another—What kind of promise gives such right—The promiser should possess the right use of reason—Difference between natural and civil law with respect to minors—Promises made under an error, or extorted by fear, how far binding—Promises valid, if in the power of the promiser to perform them—Promise made upon unlawful considerations, whether binding—Manner of confirming the promises made by others, and the conduct of Ambassadors who exceed their instructions, considered—Owners of ships, how far bound by the acts of the masters of such vessels, and merchants by the acts of their factors—Acceptance requisite to give validity to a promise—Promises sometimes revokable—The power of revoking a promise, explained by distinctions—Burdensome conditions annexed to a promise—Means of confirming invalid promises—Natural obligation arising from engagements made for others.

I. THE COURSE of the subject next leads to an inquiry into the obligation of promises. Where the first object, that presents itself, is the opinion of Franciscus Connanus, a man of no ordinary learning. He maintains an opinion that the law of nature and of nations does not enforce the fulfilment of those agreements, which do not include an express contract. Yet the fulfilment of them is right, in cases, where, even without a promise, the performance would be consonant to virtue and equity. In support of his opinion, he brings not only the sayings of Lawyers, but likewise the following reasons. He says, that the person, who makes, and he who believes, a rash promise, are equally to blame. For the fortunes of all men would be in imminent danger, if they were bound by such promises, which often proceed from motives of vanity rather than from a settled deliberation, and are the result of a light and inconsiderate mind. Lastly, the performance of whatever is any way just in itself, ought to be left to the free will of every one, and not exacted according to the rigid rules of necessity. He says that it is shameful not to fulfil promises; not because it is unjust, but because it argues a levity in making them.

In support of his opinion, he appeals also to the testimony of Tully, who has said, that those promises are not to be kept, which are prejudicial to the person to whom they are made, nor, if they are more detrimental to the giver than beneficial to the receiver. But if the performance of an engagement is begun upon the strength of a promise, but not finished, he does not require a complete fulfilment of the promise, but only some compensation to the party for the disappointment. Agreements, he continues, have no intrinsic force of obligation, but only what they derive from the express contracts, in which they are included, or to which they are annexed, or from the delivery of the thing promised. From whence arise actions, on the one side, and exceptions on the other, and bars to all claims of recovery.

But it is through favour of the laws alone, which give the efficacy of obligation to what is only fair and equitable in itself, that obligatory agreements, such as express covenants and other things of that kind, derive their force.

Now there is no consistency in this opinion, taken in the general sense intended by its author. For in the first place it immediately follows from thence, that there is no force in treaties between kings and different nations, till some part of them be carried into execution, especially in those places, where no certain form of treaties or compacts has been established. But no just reason can be found, why laws, which are a kind of general agreement among a people, and indeed are called so by Aristotle, and Demosthenes, should be able to give the force of obligation to compacts, and why the will of an individual, doing every thing to bind himself, should not have the same power; especially where the civil law creates no impediment to it. Besides, as it has been already said that the property of a thing may be transferred, where a sufficient indication of the will is given. Why may we not then convey to another the right to claim a transfer of our property to him, or the fulfilment of our engagements, as we have the same power over our actions, as over our property?

This is an opinion confirmed by the wisdom of all ages. For as it is said by legal authorities, that since nothing is so consonant to natural justice, as for the will of an owner, freely transferring his property to another, to be confirmed, so nothing is more conducive to good faith among men, than a strict adherence to the engagements they have made with each other. Thus a legal decision for the payment of money, where no debt has been incurred, except by the verbal consent of the party promising, is thought conformable to natural justice. Paulus the Lawyer also says, that the law of nature and the law of nations agree in compelling a person, who has received credit, to payment. In this place the word; COMPELLING, signifies a moral obligation. Nor can what Connanus says be admitted, which is, that we are supposed to have credit for a full performance of a promise, where the engagement has been in part fulfilled. For Paulus in this place is treating of an action where nothing is due; which action is entirely void, if money has been paid, in any way, whether according to the manner expressly stipulated, or any other. For the civil law, in order to discourage frequent causes of litigations, does not interfere with those agreements which are enforced by the law of nature and of nations.

Tully, in the first book of his Offices, assigns such force to the obligation of promises, that he calls fidelity the foundation of justice, which Horace also styles the sister of justice, and the Platonists often call justice, TRUTH, which Apuleius has translated FIDELITY, and Simonides has defined justice to be not only returning what one has received, but also speaking the truth.

But to understand the matter fully, we must carefully observe that there are three different ways of speaking, respecting things which ARE, or which, it is supposed, WILL be in our power.

II. The first of these ways is, where an assurance is given of future intentions, and if the assurance be SINCERE at the time it is given, though it should not be carried into effect, no blame is incurred, as it might afterwards not be found expedient. For the human mind has not only a natural power, but a right to change its purpose. Wherefore if any blame attaches to a change of opinion, or purpose, it is not to be imputed to the BARE ACT OF CHANGING, but to the CIRCUMSTANCES, under which it happens, especially when the former resolution was the best.

III. The second way is, when future intentions are expressed by outward acts and signs sufficient to indicate a resolution of abiding by present assurances. And these kind of promises may be called imperfect obligations, but conveying to the person to whom they are given no RIGHT to exact them. For it happens in many cases that we may be under an obligation of duty, to the performance of which another has no right to compel us. For in this respect the duty of fidelity to promises, is like the duties of compassion and gratitude. In such kinds of promises therefore the person to whom they are made, has no right, by the law of nature to possess himself of the effects of the promiser, as his own, nor to COMPEL him to the performance of his promise.

IV. The third way is, where such a determination is confirmed by evident signs of an intention to convey a peculiar right to another, which constitutes the perfect obligation of a promise, and is attended with consequences similar to an alienation of property.

There may be two kinds of alienation, the one of our property, the other of a certain portion of our liberty. Under those of the former kind we may class the promises of gifts, and under the latter the promises of doing certain actions. On this subject we are supplied with noble arguments from the divine oracles, which inform us, that God himself, who can be limited by no established rules of law, would act contrary to his own nature, if he did not perform his promises. From whence it follows that the obligations to perform promises spring from the nature of that unchangeable justice, which is an attribute of God, and common to all who bear his image, in the use of reason. To the proofs of scripture here referred to, we may add the judgment of Solomon, “My son if thou hast been surety for thy friend, thou hast tied up thy hands to a stranger; thou art ensnared by the words of thy mouth, then art thou taken by the words of thine own mouth.” Hence a promise is called by the Hebrews a bond or chain, and is compared to a vow. Eustathius in his notes on the second book of the Iliad, assigns a similar origin to the word [Greek] or engagement. For he who has received the promise, in some measure takes and holds the person, that has made the engagement. A meaning not ill expressed by Ovid in the second book of his Metamorphoses, where the promiser says to him, to whom he had promised, “My word has become yours.”

After knowing this, there remains no difficulty in replying to the arguments of Connanus. For the expressions of the lawyers, respecting BARE PROMISES, refer only to what was introduced by the Roman laws, which have made a FORMAL STIPULATION the undoubted sign of a deliberate mind.

Nor can it be denied that there were similar laws among other nations. For Seneca, speaking of human laws, and promises made without proper solemnities, says, “What law, of any country, we may add, obliges us to the performance of bare promises?” But there may naturally be other signs of a deliberate mind, besides a formal stipulation, or any other similar act which the civil law requires, to afford grounds for a legal remedy. But what is not done with a deliberate mind, we are inclined to believe does not come under the class of perfect obligations; as Theophrastus has observed in his book on laws. Nay, even what is done with a deliberate mind, but not with an intention of conceding our own right to another; though it cannot give any one a natural right of exacting its fulfilment, yet it creates an obligation not only in point of duty, but in point of moral necessity. The next matter to be considered is, what are the requisites to constitute a perfect promise.

V. The use of reason is the first requisite to constitute the obligation of a promise, which ideots, madmen, and infants are consequently incapable of making. The case of minors is somewhat different. For although they may not have a sound judgment, yet it is not a permanent defect, not sufficient of itself to invalidate all their acts. It cannot be certainly defined at what period of life reason commences. But it must be judged of from daily actions, or from the particular customs of each country. Amongst the Hebrews a promise made by a male at the age of thirteen, and by a female at the age of twelve, was valid. In other nations, the civil laws, acting upon just motives, declare certain promises made by wards and minors to be void, not only among the Romans, but among the Greeks also, as it has been observed by Dion Chrysostom in his twenty-fifth oration. To do away the effect of improvident promises, some laws introduce actions of recovery, or restitution. But such regulations are peculiar to the civil law, and have no immediate connection with the law of nature and of nations, any farther than that wherever they are established, it is consonant to natural justice that they should be observed. Wherefore if a foreigner enter into an agreement with a citizen or subject of any other country; he will be bound by the laws of that country, to which, during his residence therein, he owes a temporary obedience. But the case is different, where an agreement is made upon the open sea, or in a desert island, or by letters of correspondence. For such contracts are regulated by the law of nature alone, in the same manner as compacts made by sovereigns in their public capacity.

VI. The consideration of promises, made under an error, is a subject of some intricacy. For it, in general, makes a difference, whether the promiser knew the full extent of his promise, and the value of the thing promised, or not, or whether the contract, which was made, originated in fraudulent intention, or not, or whether one of the parties was privy to the fraud; and whether the fulfilment of it was an act of strict justice, or only of good faith. For according to the variety of these circumstances, writers pronounce some acts void and others valid, leaving the injured party a discretionary power to rescind or amend them.

Most of these distinctions originate in the ancient civil, and praetorian Roman law. Though some of them are not strictly founded in reason and truth. But the most obvious and natural way of discovering the truth is by referring to laws, which derive their force and efficacy from the general consent of mankind; so that if a law rests upon the presumption of any fact, which in reality has no existence, such a law is not binding. For when no evidence of the fact can be produced, the entire foundation, on which that law rests must fail. But we must have recourse to the subject, to the words and circumstances of a law, to determine when it is founded on such a presumption.

The same rule applies to the interpretation of promises. For where they are made upon the supposition of a fact, which in the end proves not to be true, they lose the force of obligations. Because the promiser made them upon certain conditions only, the fulfilment of which becomes impossible. Cicero, in his first book on the talents and character of an orator, puts the case of a father, who, under the supposition or intelligence that his son was dead, promised to devise his property to his nephew. But the supposition proving erroneous, and the intelligence false, the father was released from the obligation of the promise made to his relative. But if the promiser has neglected to examine the matter, or has been careless in expressing his meaning, he will be bound to repair the damage which another has sustained on that account. This obligation is not built on the strength of the promise, but on the injury, which it has occasioned. An erroneous promise will be binding, if the error was not the OCCASION of the promise. For here there is no want of consent in the party, who made it. But if the promise was obtained by fraud, the person so obtaining it shall indemnify the promiser for the injury sustained, if there has been any partial error in the promise, yet in other respects it shall be deemed valid.

VII. Promises extorted by fear are a subject of no less intricate decision. For here too a distinction is usually made between a well founded and a chimerical fear, between a just fear and a bare suspicion, and between the persons who occasion it, whether it be the person to whom the promise is given, or some other. A distinction is also made between acts purely gratuitous, and those in which both parties have an interest. For according to all this variety of circumstances some engagements are considered as void, others as revocable at the pleasure or discretion of the maker, and others as warranting a claim to indemnity for the inconvenience occasioned. But on each of these points there is great diversity of opinion.

There is some shew of reason in the opinion of those who, without taking into consideration the power of the civil law to annual or diminish an obligation, maintain that a person is bound to fulfil a promise which he has given under impressions of fear. For even in this case there was CONSENT, though it was extorted; neither was it conditional, as in erroneous promises, but absolute. It is called CONSENT. For as Aristotle has observed, those who consent to throw their goods overboard in a storm, would have saved them, had it not been for the fear of shipwreck. But they freely part with them considering all the circumstances of time and place.

VIII. To render a promise valid, it must be such as it is in the power of the promiser to perform. For which reason no promises to do illegal acts are valid; because no one either has, or ever can have a right to do them. But a promise, as was said before, derives all its force from the right of the promiser to make it, nor can it extend beyond that.

If a thing is not now in the power of the promiser, but may be so at some future time; the obligation will remain in suspense. For the promise was only made under the expectation of some future ability to fulfil it. But if a person has a controul over the condition upon which the promise is made, to realise it or not, he lies under a moral obligation to use every endeavour to fulfil it. But in obligations of this kind also, the civil law, from obvious motives of general utility, occasionally interposes its authority to make them void: obligations, which the law of nature would have confirmed.

IX. The next general inquiry, for the most part, refers to the validity of promises made upon any immoral or unlawful consideration; as if, for instance, any thing is promised to another on condition of his committing a murder. Here the very promise itself is wicked and unlawful, because it encourages the commission of a crime. But it does not follow that every FOOLISH or IMPROVIDENT promise loses the force of an obligation, as in the confirmation of imprudent or prodigal grants, for no further evil can result from a confirmation of what has been already given: and the invalidity of promises would be a greater evil than any that could result from a confirmation of the most improvident. But in promises made upon IMMORAL and UNLAWFUL considerations, there is always a criminality remaining, even while they continue unfulfilled. For during the whole of that time, the expectation of fulfilment carries with it the indelible mark of encouragement to the commission of a crime.

XII. We are obliged to confirm the engagements made by others, acting in our name, if it is evident that they had special, or general instructions from us to do so. And in granting a commission with full powers to any one, it may so happen that we are bound by the conduct of that agent, even if he exceed the secret instructions which he has received. For he acts upon that ostensible authority, by which we are bound to ratify whatever he does, although we may have bound him to do nothing but according to his private instructions. This rule, we must observe, applies to the promises made by ambassadors in the name of their sovereigns, when, by virtue of their public credentials, they have exceeded their private orders.

XIII. From the preceding arguments, it is easy to understand how far owners of ships are answerable for the acts of the masters employed by them in those vessels, or merchants for the conduct of their factors. For natural equity will qualify the actions brought against them, according to the instructions and powers which they give. So that we may justly condemn the rigour of the Roman law, in making the owners of ships absolutely bound by all the acts of the masters employed. For this is neither consonant to natural equity, which holds it sufficient for each party to be answerable in proportion to his share, nor is it conducive to the public good. For men would be deterred from employing ships, if they lay under the perpetual fear of being answerable for the acts of their masters to an unlimited extent. And therefore in Holland, a country where trade has flourished with the greatest vigour, the Roman law has never been observed either now or at any former period. On the contrary, it is an established rule that no action can be maintained against the owner for any greater sum than the value of the ship and cargo.

For a promise to convey a right, acceptance is no less necessary than in a transfer of property. And in this case there is supposed to have been a precedent request, which is the same as acceptance. Nor is this contradicted by the promises which the civil law implies every one to have made to the state, WITHOUT ANY REQUEST OR FORMAL ACCEPTANCE.

XIV. A reason which has induced some to believe that the sole act of a promiser, by the law of nature, is sufficient. Our first position is not contradicted by the Roman law. For it no where says, that a promise has its full effect before acceptance, but only forbids the revocation of it which might prevent acceptance: and this effect results, not from NATURAL but from purely LEGAL rules.

XV. Another question is, whether the acceptance alone of a promise is sufficient, or whether it ought to be communicated to the promiser before it can be made binding.

It is certain that a promise may be made two ways, either upon condition of its being fulfilled, if accepted, or upon condition of its being ratified, if the promiser is apprised of its being accepted. And in cases of mutual obligation, it is presumed to be taken in the latter sense; but it is better to take promises that are purely gratuitous in the former sense, unless there be evidence to the contrary.

XVI. From hence it follows, that a promise may be revoked, without the imputation of injustice or levity, BEFORE ACCEPTANCE, as no right has yet been conveyed; especially if ACCEPTANCE were made the condition of its being fulfilled. It may be revoked too if the party to whom it was made, should die before acceptance. Because it is evident that the power to accept it or not, was conferred upon HIM, and not upon his HEIRS. For to give a man a right, which may POSSIBLY descend to his heirs, is one thing, and to express an intention of giving it to his heirs is another. For it makes an essential difference upon what person the favour is conferred. This is understood in the answer made by Neratius, who said, that he did not believe the prince would have granted to one who was dead, what he granted, supposing him still alive.

XVII. A promise may be revoked, by the death of the person appointed to communicate to a third the intention of the promiser. Because the obligation to the third person rested upon such communication. The case is different, where a public messenger is employed, who is not himself the obligatory instrument, but only the means through which it is conveyed. Therefore letters indicating a promise, or consent may be conveyed by any one. Yet there is a distinction to be made between a minister appointed to communicate a promise, and one appointed to make the promise in his own name.

For in the former case, a revocation will be valid, even though it has not been made known to the minister employed; but in the latter case, it will be entirely void, because the right of promising was committed to the minister, and fully depended upon his will; therefore the obligation of the promise was complete, as he knew of no intended revocation. So also in the former case, where a second person is commissioned to communicate the intentions of a donor to a third; even if the donor should die, the acceptance of the gift will be deemed valid, all that was requisite being performed on one part; though till that period the intention was revocable, as is evident in the case of bequests. But in the other case, where a person has received a full commission to execute a promise during the LIFE of the donor, should the donor die before the execution of it, and the person employed be apprised of his death; the commission, the promise, and the acceptance of it will then, at once, become void.

In doubtful cases, it is reasonable to suppose that it was the intention of the promiser, that the commission which he gave should be executed, unless some great change, as for instance, his own death should occur. Yet reasons in favour of a contrary opinion may easily be found and admitted, especially with respect to pious donations, which, at all events, ought to stand good. And in the same manner may be decided the long disputed question, whether an action on account of such a bequest could be brought against the heir. Upon which the author of the second book to Herennius says, that Marcus Drusus the praetor decided one way, and Sextus Julius another.

XVIII. The acceptance of a promise for a third person is a matter subject to discussion, in which there is a distinction to be observed between a promise made to a person of a thing, which is to be given to another, and a promise made directly to the person himself, on whom the former is to be conferred. If a promise is made to any one, where his own personal interest is not concerned, a consideration introduced by the Roman law, by acceptance he seems naturally to acquire a right which may be transferred to another for HIS acceptance, and this right will pass so fully, that in the mean time the promise cannot be revoked by the person who gave, though it may be released by him who received it. For that is a meaning by no means repugnant to the law of nature, and it is entirely conformable to the words of such a promise; nor can it be a matter of indifference to the person, through whom another is to receive a benefit.

But if a promise is made directly to one, on whom a thing is to be conferred, a distinction must be made, whether the person receiving such a promise has SPECIAL commission for acceptance, or one so GENERAL as to include acceptance, or has it not. When a commission has been previously given, no farther distinction is necessary, whether the person be free or not, a condition which the Roman laws require. But it is plain that from such an acceptance, let the condition of the person be what it will, the promise is complete: because consent may be given and signified through the medium of another. For a person is supposed to have fully intended, what he has put into the power of another to accept or refuse.

Where there is no such commission, if another, to whom the promise was not directly made, accepts it with the consent of the promiser, the promise will be so far binding, that the promiser will not be at liberty to revoke it, before the person, in whose favour it was made has ratified, and afterwards chosen to release the engagement. Yet, in the mean time, the accepter cannot release it, as having derived no peculiar right from it himself, but only been used as an instrument in promoting the kind intentions and good faith of the promiser. The promiser therefore himself, by revoking it, is not doing violence to the perfect right of another, but only acting in contradiction to his own good faith.

XIX. From what has been said before, it is easy to conceive what opinion ought to be entertained of a burdensome condition annexed to a promise. For it may be annexed at any time, till a promise has been completed by acceptance, or an irrevocable pledge to fulfil it has been given. But the condition of a burden annexed to a favour intended to be conferred upon a third person, through the medium of any one, may be revoked before the person has confirmed it by his acceptance. On this point there is great difference of opinion. But upon impartial consideration the natural equity of any case may be easily seen without any great length of arguments.

XX. XXI. XXII. Another point of discussion relates to the validity of an erroneous promise, when the person, who made it, upon being apprised of his error is willing to adhere to his engagement. And the same inquiry applies to promises, which, arising out of fear or any other such motive, are prohibited by the civil law. What, it may be asked, will become of these promises, if that fear, or that motive has been removed?

To confirm such obligations, some think an internal consent of the mind alone in conjunction with some previous external act is sufficient. Others disapprove of this opinion, because they do not admit that an external act is a real sign of a subsequent intention. Therefore they require an express repetition of the promise and acceptance. Between these two opinions, the truth is most likely to be found. There may be an external act expressive of a promise, though unaccompanied with words; where one party’s accepting and retaining a gift, and the other’s relinquishing his right in it are sufficient to constitute a full consent.

To prevent civil laws from being confounded with natural justice, we must not omit noticing, in this place, that promises though founded in no EXPRESS motive, are not, any more than gifts, void by the law of nature.

Nor is a person who has engaged for another’s performing any thing, bound to pay damages and interest for neglect, provided he has done every thing that was necessary on his part towards obtaining its accomplishment. Unless the express terms of the agreement, or the nature of the business require a stricter obligation, positively declaring that, under all circumstances whatever, the thing shall be performed.

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