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Promise, Expectation and Agreement

Published online by Cambridge University Press:  16 January 2009

Samuel Stoljar
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What is it to make a promise? What its conceptual ingredients? How do promises compare with other statements? How exactly do they relate to agreements or basic contract theory? These, broadly, are the major, if not quite the only, questions we shall here try to elucidate.

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Articles
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The Cambridge Law Journal , Volume 47 , Issue 2 , July 1988 , pp. 193 - 212
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Copyright © Cambridge Law Journal and Contributors 1988

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References

1 Timon of Athens, V, 1, 25–26. The correlation of promises with expectations was pointed out already by Smith, Adam in 1763: see his Lectures on Jurisprudence (Oxford 1978 ed.) 92 and passimGoogle Scholar.

2 Cf. Grant, C. K., Promising (1949), 58 Mind, 359, 360Google Scholar.

3 This best explains McRae v. Commonwealth Disposals Commission (1950) 84 C.L.R. 377Google Scholar.

4 Atiyah, P. S., Promises, Morals, and Law (Oxford, 1981), 164ffGoogle Scholar.

5 Professor Atiyah (ib.) gives two further examples to support his thesis: one that concerns the “contractual liabilities” imposed on executors, another relating to the restrictive covenant, both of which, it is said, show that a promisor can promise that something will be done by someone else. But these examples seem even less convincing than those in the text. An executor is anyhow under a duty to act as instructed, or according to his office, while a restrictive covenant creates burdens running with the land rather like a servitude; neither has much to do with confirming or denying promises as personal acts.

6 Atiyah, op. cit., 161ff.

7 Ibid.

8 The idea that a promise it shall rain tomorrow can be a promise in law started with , Holmes. The Common Law (1881), 298Google Scholar, and was recently reiterated by Atiyah, op. cit., 166. The idea apparently goes back to certain dicta in Jones v. How (1850), 9 C.B. 1, 9Google Scholar and Canham v. Barry. (1855), 15 C.B. 597, 619Google Scholar. But the dicta do not mean what they are taken to convey, quite apart from being purely obiter. In the former case the judge's dictum referred to alternative conditions in a gift, not to promises themselves, with counsel remarking that as regards the weather the promisor was like an insurer. In the second, the dictum appears to be no more than a vivid illustration of the promisor's ability to promise something which, though unable to do at the time of promising, he may become able to do at the time of performance. See more generally , Stoljar, The Ambiguity of Promise (1952), 47 Northw. Univ. Law Rev. 1, 13Google Scholar.

9 For what appear thoughts in the same direction, see Schncewind, J.. A Note on Promising (1966), 17 Philosophical Studies, 33CrossRefGoogle Scholar.

10 Carter, W. R., On Promising the Unwanted (1972–1974), Analysis, 88Google Scholar.

11 Atiyah, op. cit., 158.

12 For this example, see Raz, J., Promises and Obligations, in , Hacker and Raz, (eds.), Law, Morality and Society (Oxford, 1977) 213Google Scholar.

13 See on this Durrant, R. G., Promising (1963) 41 Austr. J. of Phil., 44, 49ffGoogle Scholar.

14 Searle, J. R., What is a Speech Act? in Searle, (ed.), The Philosophy of Language (Oxford, 1971) 39, 51Google Scholar.

15 For the various requirements, see the full account in Treitel, G. H., The Law of Contract (7th ed., London 1987) 254ffGoogle Scholar.

16 (1854) 5 H.L.C. 185Google Scholar.

17 Austin, J. L., How to Do Things with Words (Oxford, 1972) 14ff., 105ff., 135ffGoogle Scholar.

18 Strawson, P. F., Intention and Convention in Speech Acts (1964) 73 Phil. Rev., 439, 446ffGoogle Scholar.

19 See Hanfling, O., Promises, Games and Institutions (1974) 75 Proc. Aris. Soc., 13, 27–8Google Scholar.

20 Holmes, op. cit., 298 and passim.

21 See Brogden v. Metropolitan Ry (1876) 2 App. Cas. 662, 691–2, 697Google Scholar.

22 For the long debate, involving Professors Goble, Green and Williston, see Selected Readings on the Law of Contract, 203ff.

23 The American Restatement, departing from the orthodox rule, now supports a similar result. But it docs this rather by legislative fiat than by any argument as to why this result is justified analytically. See Restatement Contracts 2d, s. 45. Comment b does say that the section is designed to protect the offeree in justifiable reliance on the offeror's promise; but that section as well as its illustrations speak of a contract being created rather than of reliance, the difference of this being that if there is a contract the promisee can recover the promised reward minus his own non-performance instead of merely expenses for the reliance. The two measures of recovery may, in practice, work out the same; but they are theoretically very different, at least so long as the rules relating to contract and to promissory estoppel are kept separate. However this may be, the new s. 45 is an improvement on the corresponding section in the first Restatement. For an earlier argument along lines very similar to the new s. 45, see Stoljar, , The False Distinction Between Bilateral and Unilateral Contracts (1955), 64 Yale L.J. 515CrossRefGoogle Scholar.

24 Cp. Anon. (1436) Y.B. 14Google Scholar Hen. 6, f.18, pl.58 with the Case of Barley (1505) Y.B. 20Google Scholar Hen. 7, Mich., f.8, p1.18; Keilw. 69, 77.

25 Fuller, and Perdue, , The Reliance Interest in Contract (1936) 46 Yale L.J. 61CrossRefGoogle Scholar; (1937) 46 Yale L.J. 373Google Scholar.

26 Fuller and Perdue, op. cit., 61–2. And see also Farnsworth, E. Allan, The Past of Promise (1969) 69 Co. L. Rev. 576, 596–7CrossRefGoogle Scholar.

27 Fuller, L. L., Consideration and Form (1941) 41 Col. L. Rev. 799, 815CrossRefGoogle Scholar.

28 In Robinson v. Harman (1848) 1 Exch. 850Google Scholar, where this phrase originated, the plaintiff recovered a relatively large amount in damages for the defendant's failure to convey a lease, precisely on the ground that the plaintiff had to be put in the same position as if the contract had been performed; but the items of damage were not shown. Not only does the decision precede Hadley v. Baxendale, but its thrust seems no longer altogether compatible with the new tendency of carefully scrutinising all items of alleged loss. See, e.g., Pilkington v. Wood [1953] 1 Ch. 770Google Scholar; Cullinane v. British “Rema” Manuf g Co. [1954] 1 Q.B. 292Google Scholar.

29 All this is critically missed in some recent rather extremist views that see contract as only concerned with reliance and benefit, not properly with expectation at all. See, e.g. Atiyah, P. S., Contracts, Promises and the Law of Obligations (1978) 94 Q.L.R. 193Google Scholar.

30 Frost v. Knight (1870) L.R. 5 Exch. 322Google Scholar; (1872) L.R. 7 Exch. 111.

31 See, e.g., Leigh v. Paterson (1818) 8 Taunt. 540Google Scholar; Roper v. Johnson (1873) L.R. 8 C.P 167Google Scholar. Where there is no available market, the promisee has no similar choice, but must sue at once, so as to mitigate damages. A servant, for example, not only can but has to sue immediately if wrongfully dismissed. A duty to mitigate now makes sense, for the simple reason that even a wrongfully dismissed servant cannot just wait out his full period for he would then be paid for work not done. His chances of obtaining alternative employment must certainly be taken into account, for his damages will be greater the smaller these changes are; but he cannot continue to offer services no longer wanted of him.

32 Fuller and Perdue, op. cit., 65.