undertakings on the part of the maker of the warranty) to separate out a statement of fact from any conditional undertaking (whether of a promissory nature or not) applicable should the statement be untrue, it may be safest to conclude that, while warranties can be viewed as containing a promise, they amount in total to more than simply such a promise.

(f)  Agreement

The concept of an agreement has been defined in varying ways, not all of which are relevant to the present discussion. Nearly all definitions would suppose a number of persons (at least two) to be involved in an act of agreement, though one occasionally encounters descriptions of a single person ‘agreeing’ in a unilateral act to do something. Ignoring that unusual and arguably misguided sense, an agreement is usually said to denote a ‘meeting of the minds’, in the sense that the parties concerned each express a concurrence in a posited state of affairs or course of action. Thus, the idea that two persons ‘agree’ that the weather is bad today would suggest that they concur as to that proposition (though not being omniscient beings, we can never be wholly sure what each subjectively understands by the idea of the weather’s being ‘bad’, the very problem which often produces alleged subjective disagreement despite apparent concurrence). A concurrence suggests an externally demonstrated declaration of such concurrence, so that the mere fact that two individuals might both separately think that the weather is bad does not mean that they agree that it is: they must declare their adherence to the proposition in question before an agreement can be said to exist. Such an objective concurrence of parties is often arrived at through consecutive individual declarations, in which case use of the term agreement can denote the declaration of one of the parties to a previously stated proposition by the other: thus, the expression ‘he expressed his agreement’ often, in a contractual context, indicates an acceptance by one party of a prior contractual proposal made by the other.

The agreements with which the law is concerned do not however relate to statements of fact,110 such as the nature of the weather, but rather to duties which the parties are (or at least one of whom is) to perform. The concurrence of wills which is of the essence of contract can (though need not) be described in promissory terms, an approach which was the tradition

110Save where such statements take the form of a warranty, and are thus guaranteed as true by one of the parties: see the discussion in the previous section of the main text.

of the medieval jurists and the late scholastics, and has been maintained clearly in the contract language of Common law jurisdictions, but also in other systems too.111 Parties agree to be bound contractually either (in the case of a gratuitous contract) by the promise of one party being accepted by a simple ‘yes’ of the other, or (in the case of a mutual contract) through an exchange of conditional promises (the performance of the one being the condition imposed by the other for its performance). Agreement is thus the end result produced by a promissory mechanism which demonstrates concurrence of the parties’ wills in the substance of what has been promised.

One can of course, as some theorists do, reject a promissory view of contract, and argue that contract is based on a non-promissory understanding of agreement or on some other basis altogether. On a nonpromissory view of agreement, it might for instance be argued that the essence of agreement lies in a consent mutually to be bound at law. On such a view, when A contracts to sell his house to B for an agreed price, the parties are consenting to be bound to the obligations they have proposed (and, additionally, to any obligations imposed on them by the common law or legislation). The attraction to some of such an approach is that it is said to assist in explaining the binding force of some contracts which it is alleged do not embody any promises (because no future performance is pledged by either party). However, if the problem allegedly posed by such contracts for a promissory view of contract can be dealt with (and it will be argued later that such alleged problematic examples of contract can adequately be analysed in promissory terms),112 then the need to eschew promissory language when describing agreement flies off. Though agreement is the end result, promise is the mechanism by which it is reached, and there is no reason why a promissory conception of such an exchange needs to be eschewed in favour of the language of a ‘consent to be bound’.113

Agreement then, though different from promise, can be argued to be achieved in a contractual context by the means of promise. Crucially,

111It can be found in civilian conceptions of agreement too, as, for instance, in §861 of the Austrian Civil Code (AGBG), concerning the conclusion of contracts, which speaks of the making and acceptance of a promise (ein Versprechen) as the method by which the mutual consent or agreement (der übereinstimmende Wille) of the parties is achieved.

112See discussion in Ch. 4, at pp. 215–17.

113In any event, as will be evident from the definition offered earlier of a promise, a promise is an expression of a consent to be bound, so the language of ‘consent to be bound’ (or ‘assumption of duty’) can in any event be said to apply to the idea of promise.