however, whilst promising is a means to reach agreement, one can agree without promising, and thus agree without yet being bound to the agreement. This is so because there can be consensus between parties to the effect that, if they decide to bind themselves contractually, certain agreed terms will govern their relationship, without the intention to be bound yet having been manifested. This shows the importance, when determining whether a contract exists, of looking beyond mere agreement, to verifying whether the consent to be bound demonstrated by the making of a promise is present. Agreement does not equate to promise because one can reach a consensus that x will be so without yet binding oneself to undertake x. Agreement therefore, of itself, is not enough to create a contract: a concurrence of the wills of the parties is required, such concurrence being demonstrated by the mechanism of promise.

4.  Promise as a culturally universal and significant idea

The discussion of promise thus far as a human institution has doubtless given the impression, from the broad historical perspective taken, that promising has been a universal feature of all human societies since the earliest times. Indeed, over the centuries a number of legal philosophers have confidently asserted that promising is just such a universal institution.114 Is such an assertion correct, however, or can one identify any cultures, whether current or historic, which lack a concept of promise? Theoretically, one might suggest that any culture which had no concept of the future, or of the predictability of future events, or of the reasonableness of relying upon human commitments to future acts, might lack a concept of the promise.

The sociologists Fred and Shulamit Korn have attacked the assertion that promising is a necessary aspect of all human societies, arguing that it is not based upon empirical anthropological study but rather ‘assumptions about the nature of society and what is necessary for it to flourish’.115 In support of their argument, they claim to have identified one such society where there is no concept of promising: Tonga. While they admit that Tongan society has a concept of oaths (for instance, as used in courts of law) as well as pledges (such as a pledge of allegiance), neither of these acts embodies a commitment of future action, which is of course an essential

114See, for instance, Hart, The Concept of Law, pp. 189–95; Hume, ‘Of the Original Contract’, pp. 160–1.

115Korn and Korn, ‘Where People Don’t Promise’, p. 446.

component of the definition of promise given earlier. Moreover, they assert that this absence of promising from Tongan society is not a linguistic matter:

it is not just that the Tongan language has no word equivalent to the English word ‘promise’ … Rather what is important is that in Tonga there is no performative equivalent to our speech act of promising whereby the speaker undertakes an obligation to perform some future act.116

They add, however, that while Tongans do make utterances couched in language which others might interpret as promissory, those making them do not perceive these utterances as giving rise to any obligation: there is no promissory intent present. Rather, such words are uttered because they are ‘an expression of solidarity and concern’ for the hearer’s position.117 One might imagine that such repeated false utterances would lead others to doubt the sincerity of the speaker, and indeed Korn and Korn concede that experience shows that, of themselves, such false utterances cannot sustain significant relationships: practical assistance and aid to the other must be forthcoming.118

The argument presented by Korn and Korn is, in essence, that the cultural norm in Tonga is simply entirely different to that elsewhere, and that a Tongan can, in consequence, say with impunity that he will do something yet not do it. Why is this so? Precisely, suggest Korn and Korn, for one of the theoretical reasons suggested above as likely to prevail in a society which lacked a concept of promising:

To Tongans, the future is indefinite and uncertain. Plans for the future are not regarded as fixed, for there is no telling how things will work out.119

One might imagine that such an attitude would make any law of contract meaningless, and indeed in formal legal terms that would appear to be the position presented by Korn and Korn. Many Tongans, however, clearly do have confidence that others will do what they have said they will do, but the reason for this, it is said, is that

confidence depends not on what is said but on a judgment about the other person’s commitment to the relationship.120

Korn and Korn assert that those Tongans seeking to evade expected performance­ for short term gain find that others will be reluctant to form

a relationship with them,121 though this seems to be an assertion based on game theory principle rather than upon any empirical evidence.122

What is to be made of the argument of Korn and Korn? If they are right that Tongans do not conceive that it is possible to undertake binding obligations relating to the future, and that any language they use suggesting otherwise is merely illusory, then it would seem to follow that the necessary requirement for a valid promise of an intention to be bound to a future act cannot be present when Tongans appear to be promising. On the other hand, one wonders whether, assuming such is indeed the Tongan attitude, it can be preserved in the long term, given Tongan interaction with outside cultures. It would be surprising if at least some Tongans had not adopted a non-Tongan view of the binding nature of promises. Furthermore, given that Tongans at least give the impression of undertaking promises, in that they use language which is couched in promissory terms, one might argue that, on an objective assessment of their intentions, they should in fact be taken to undertake promises, whatever their subjective understanding might be, especially in their interactions with non-Tongans, or else how could the Tongan Government, for instance, be expected to honour promises made to other national governments or foreign corporations. A society which at least has words which function in a promissory way clearly has some concept of promissory ideas even if, as Korn and Korn argue, the members of that society do not subjectively mean what they say when using that promissory language. Finally, the assertion by Korn and Korn that what matters is not words used but the ‘commitment’ of another to a relationship, seems to be a recognition that a commitment in some form to the future of a relationship is important in Tonga; that idea is hard to reconcile with the assertion that Tongans have no concept of the future or of committing to it. These points cast some doubt on the view that Tongans neither have a concept of promise nor undertake promises, and suggest that, even if any such position does prevail, it is unlikely to persist in the long term if Tongans wish to interact with the outside world.

In actuality, Tongan society may be more like Iranian society. Iranians appear to view promises in a different way to Western cultures, not because, as Korn and Korn argue in respect of Tonga, there is no concept

121Ibid.

122Game theorists recognise likelihood of performance as one of the variables to be inputted when analysing contractual negotiations: see, for instance, Katz, ‘The Strategic Structure of Offer and Acceptance’.

of promising, but rather because the art of deception, being insincere in what one says, is, it is said, an established feature of Iranian society. This at least is the view of one Western observer of Middle Eastern society, Michael Slackman.123 Slackman refers to a concept in Iranian society called taarof,

a concept that describes the practice of insincerity – of inviting people to dinner when you don’t really want their company, for example. Iranians understand such practices as manners and are not offended by them.

The practice of taarof beyond the field of social engagements has, Slackman argues, far-reaching consequences for international political relations. The same might be said for its consequences for contract and interpersonal promises too: insincere promising would seem to render contracting an unreliable and unpredictable field. There are further similar features of Iranian society, such as taqiyya (religiously sanctioned deception or dissimulation to conceal one’s true intentions and beliefs), kitman (deception) and khod’eh (trickery or claiming one’s true position by half-truths rather than outright lies or deception),124 which evidently colour Iranian perceptions of the nature of what is being undertaken when promissory language is used.125

Such concepts suggest not that Iranians have no concept of promising, but rather a cultural norm where it is expected that promises which have been made may be insincere and unreliable. The language used by apparent promisors should not be taken to mean what it purports to. It seems then that apparent promissory language is not expected to be considered formative of promises, given a lack of subjective intent to promise.

Seana Shiffrin has expressed doubts about the alleged conclusive antipromissory evidence of Tongan and Iranian society:

Some reports about Tongan and Iranian culture may complicate claims about the universality of promising, but it is difficult to determine exactly what they show … Some of this evidence could be interpreted to show that in some cultures, it is hard to tell when sincere commitments are expressed, but not that promises as such have little or no significance. Further, the purported departures from the culture of promising take place in contexts of hierarchical, unequal structures; thus, they may not

123See Slackman, ‘The Fine Art of Hiding What You Mean to Say’.

124See further on these, Campbell, ‘Iran and Deception Modalities’.

125Slackman, ‘The Fine Art of Hiding What You Mean to Say’, quotes Iranian social psychologist Muhammad Sonati as saying ‘In Iran … [y]ou promise things, and you don’t mean it. People who live here understand that.’