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Contract as Promise: The Role of Promising in the Law of Contract. An Historical Account

Document Cited authorities 25 Cited in Related
Vincent
Date01 January 2013
DOI10.3366/elr.2013.0136
Pages1-21
Published date01 January 2013
INTRODUCTION

One of the most striking features of the law of obligations in Scotland is the way in which a promise seriously intended is sufficient to generate a binding obligation.1

W D H Sellar, “Promise”, in K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000) 252; W McBryde, “Promises in Scots law” (1993) 42 ICLQ 48.

More than three hundred years ago Viscount Stair wrote that “a promise is that which is simple and pure, and hath not implied as a condition, the acceptance of another”.2

Stair, Inst 1.10.4.

 Stair explained that, “Promises now are commonly held obligatory, the canon law having taken of the exception of the civil law, de nudo pacto”.3

Ibid.

 This was not some abstract proposition. The Court of Session has enforced these types of promises since the sixteenth century4

Drummond v Bisset (1551) Mor 12381.

 as a result of the “positive and direct”5

Sellar, “Promise” (n 1) at 266, McBryde, “Promises” (n 1) at 54.

 influence of the Canon Law. In Stair's day the apparently generous view of promissory liability in Scots law was tempered by formality requirements. Promises, if challenged, could only be provable by writing or an oath.6

Stair, Inst 1.10.4.

In the last few years, following the Requirements of Writing (Scotland) Act 1995, the importance of promises as a source of obligations may even have increased as a result of the dilution of the formality requirements.7

H MacQueen and J Thomson, Contract Law in Scotland (2007) para 2-61.

The future of promises more broadly may be less bright. The Draft Common Frame of Reference (DCFR), for example, eschews mention of promises. Promises are neither an independent source of obligation nor part of the definition of a contract.8

C von Bar, E Clive and H Schulte-Nölke, Principles, Definitions and Modern Rules of European Private Law Draft Common Frame of Reference (2009) Intr 28, II-1:101, II-1:103.

 At a time when the future direction of private law in Europe remains uncertain it may be a good moment to reflect on the value and role of promises in the law of obligations.9

A recent study by Dr Martin Hogg, Promises and Contract Law (2011) examines some of these issues in detail. See also M Hogg, “Promise: the neglected obligation in European private law” (2010) 59 ICLQ 461.

 Despite the fact that it has been largely overlooked, a comparative legal historical analysis may prove useful in highlighting the limits and possibilities of promises.10

The historical perspective has not been entirely ignored. James Gordley has discussed the role of promises, albeit largely from the perspective of his main thesis that the modern law of contract can be traced through Aristotle, Thomas Aquinas, the Neo-Scholastics and Natural lawyers. These themes are explored in detail in J Gordley, The Philosophical Origins of Modern Contract Doctrine (1992). A short summary can be found in J Gordley (ed), The Enforceability of Promises in European Contract Law (2001) ch 1.

 Charles Fried, in Contract as Promise, the leading defence of promissory theories of contracting, argued that a promisor was morally bound to keep his promise and by extension his contract because he has “intentionally invoked a convention whose function is to give grounds – moral grounds – for another to expect the promised performance”.11

C Fried, Contract as Promise: A Theory of Contractual Obligations (1981) 16.

 Other than claiming a common ancestry with Cicero, Pufendorf and Grotius, Fried actually said very little about how promising had become a convention in the first place.12

Ibid 21. Fried went into slightly more detail in his review of Patrick Atiyah's The Rise and Fall of Freedom of Contract (1979) in (1979-80) 93 Harvard LR 1858 at 1864-1867.

Promises have deep historical popular appeal and are mentioned in both the Bible13

These include some of the most significant tenets of Christian faith: Holy Bible New Revised Standard Version (1995), 1 John 2:25 “And this is what he has promised us eternal life”. E Allan Farnsworth, “Parables about promises: religious, ethics and contract enforceability” (2002-2003) 71 Fordham LR 695 at 698-701.

and the Qu'ran.14

Farnsworth “Parables about promises” (n 13) at 697-698. The relevant passage states, “be true to every promise,” for “you will be called to account for every promise which you have made!”. It appears in The Qur'an at 17: 34. In some translations the word “promise” is replaced by “pledge”, “engagement” or “covenant”. If nothing else these differences merely serve to emphasise that a promise is closely related to other terms that signal binding obligation, for example in M A S Abdel Haleem (tr), The Qur'an (2010) 177.

 The practice of promise keeping has attracted support from groups as diverse as natural lawyers15

A modern natural lawyer like John Finnis remains attached to the importance of promising albeit that his explanation for the binding force of promises is more nuanced than the one advanced by earlier generations of natural lawyers: J Finnis, Natural Law and Natural Rights (1992) 298-308.

 and secular liberals.16

Fried falls within this group but there are many different versions, for example, D Kimel, From Promise to Contract (2005).

 Yet the strength of promissory based obligations lies in practicalities and shared experience as much as morality and legal theory. Small children understand that a promise has special connotations.17

See I Opie and P Opie, The Lore and Language of Schoolchildren (2001) ch 8 for a discussion of verbal formulas used by children as a way of generating obligations. Promises also feature in children's stories. There is a particularly good example in L F Baum, The Wonderful Wizard of Oz (S Wolstenholme ed, 2008) 182, where, having killed the Wicked Witch, Dorothy, the Scarecrow, the Tin Woodman and the Cowardly Lion urge Oz to fulfil the promises that he has made to them.

 The ease with which a promise can be made is a good thing. But it also brings problems. It is often difficult for courts to distinguish between those promises where the promisor intends legal consequences and those where he does not. Many legal systems have sought to solve the problem by requiring something in addition to the promise. This is why, on closer examination, liability on the basis of a simple promise, whether as a component of a contract or a freestanding form of liability, turns out to be the exception rather than the norm. As an explanation for contractual liability rather than an independent source of obligation, promises have had to complete with an alternative theory that contracts are based on agreements. In England in particular agreement rather than promissory based theories have predominated PROMISING IN EARLY LEGAL SYSTEMS

In early legal systems obligations arose out of gifts rather than contracts. Receipt of a gift gave rise to an obligation to make a counter gift in return.18

The idea was seminally discussed in M Mauss, The Gift (1990). Gift exchange reflected complex social relations and continued into medieval times. For a discussion of Iceland, see W Miller, Bloodtaking and Peacemaking: Feud, Law and Society in Saga Iceland (1990) ch 3.

Promises had no role. Following the development of a more sophisticated system of commerce in Ancient Greece,19

For a detailed account of the development of commerce in Ancient Greece, see J Hasebroek, Trade and Politics in Ancient Greece (L M Fraser and D C MacGregor tr, 1965).

 something more akin to modern contract emerged alongside the gift exchange.20

S Von Reden, Exchange in Ancient Greece (2003) ch 1.

 The Greeks undoubtedly recognised the importance of promise keeping21

There are, for example, numerous references to promises in Homeric literature. See P Karavites, Promise Giving and Treaty-Making: Homer and the Near East (1992)

 but whether promises alone were sufficient to create a contract is less clear. Some scholars have argued in favour of the existence of consensual contracts;22

For the claim that contracting is based on agreement, see E Cohen “Commercial law”, in M Gagarin and D Cohen (eds), The Cambridge Companion to Ancient Greek Law (2005) 290. Cohen stresses that in contracts concerned with the maritime market (emporoi) that writing was used from an earlier date than for other sorts of agreement. For details of the written maritime contracts, see E Cohen, Ancient Athenian Maritime Courts (2005) 129-136.

 others have stressed the “real” nature of contracting.23

Most famously in F Pringsheim, The Greek Law of Sale (1950).

 On balance promises alone were probably insufficient.24

E Carawan, “The Athenian law of agreement” (2006) 46 Greek, Roman and Byzantine Studies 339. Carawan concedes that some real contracts involved the used a legal fiction in order to explain the exchange of property bringing them closer to consensual contracts.

 Another feature of contracting over many centuries, the oath, also made an appearance. As Cicero explained in De Officiis:25

Cicero, De Officiis (W Miller tr, 1913) III: 104.

But in taking an oath it is our duty to consider not what one may have to fear in case of violation but wherein its obligation lies: an oath is an assurance backed by religious sanctity; and a solemn promise given, as before God as one's witness, is to be sacredly kept. For the question no longer concerns the wrath of the gods (for there is no such thing) but the obligations of justice and good faith.

 Cicero moved away from the simplistic notion that an oath was significant because of the risk of divine retribution regarding oaths as a reflection of wider social obligations. An oath and a promise are distinct concepts but the two might easily be combined. A promise cloaked by an oath derived additional obligatory force from the intervention of a deity. In early medieval Europe oaths were one of a number of ways of creating a binding obligation.26

M Bloch, Feudal Society (L A Manyon tr, 1965) vol 1, 113: “In contracts, the...

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