arguments to the position that promising is a human institution the content­ of which is determinable by those to whom it applies.

For the moment, however, it will continue to be asserted, without providing a detailed justification for such assertion, that the concept of promising may be determined, as with other human social institutions, by human beings themselves, though it is not denied either that human beings may be predisposed (perhaps genetically, perhaps by virtue of our nature as divinely created beings) to promising, or that the boundaries they give to the institution of promising may not be affected by a theistic belief in an objective and supernatural nature to promising, issues considered further in the next chapter.

The nature of promise will now be explored further by reference to component elements of the working definition suggested above. In this examination, it will become evident that the promissory analysis of nonlegal disciplines can often be of assistance to juridical understandings of promise.

(c)  Testing component elements of the definition of promise

(i)  A promise is more than merely an internal mental process: promises as speech acts demonstrating commitment

It was observed when suggesting a definition of a promise that mere internalised mental processes or unarticulated statements – the ‘promise’ made only in the mind of the promisor of the type ‘I shall see to it that my daughter is financially supported while at University’ – should not count as promises properly so called. It is generally accepted across disciplines having an interest in the idea of a promise that some manifested commitment of the person undertaking a promise – whether that commitment be expressed by way of spoken words, writing, or behaviour (for instance, a nod of the head in response to a question asking whether a promise is intended13) – to another is required before there may be a promise. So the speaker, uttering the promissory words, must know and intend that in so doing he is undertaking a commitment, that commitment being

13Atiyah suggests that, where it is conduct, such as a nod of a head, which is held to demonstrate the promissory intent, what is happening is that a promise is being implied from the conduct (see Promises, Morals and Law, pp. 173–4). But why must an implication be made? Where conduct unequivocally indicates assent to an obligation, no implication need be made any more than where words indicate assent: each is simply a mode of communicating assent to the obligation.

to assume an obligation (a binding duty) towards another. Why is the necessity for such a commitment maintained?

Different ways of justifying the necessity of such a requirement are emphasised by different disciplines. The lawyer may emphasise the ­onerous nature of what is being undertaken when promising (especially if the promise is to be a gratuitous one), and may therefore stress the need for certainty before the speaker be held to have assumed such an onerous obligation. The psychologist may emphasise the different stages in the process of deliberating upon, and then committing to, a decision, noting that it is only when human beings manifest some behaviour external to their thought processes that they may be taken to commit irrevocably to a decision which has been the subject of mental deliberation, and that, before this stage is reached, human beings generally feel that they are operating within a private, personal realm, and thus are free to change their minds. The sociologist might emphasise the importance to the functioning of human society of certain types of publicly declared and manifested conduct, and highlight the ceremonial attendant upon, for instance, making vows or oaths, the notarisation of legal documents, or simply the form and context within which words must be placed before public recognition is given to certain types of acts. The linguist may explain how certain words have developed a usage which best allows the speaker to manifest commitment to the undertaking of duties in favour of others. Taken together, these disciplinary observations doubtless explain that a number of factors have led to the universally accepted requirement that promissory intent be more than mere internal mental commitment to a course of action. In fact, the various disciplinary observations have not been confined to their respective spheres; those, for instance, writing on the law appear at various times to have drawn upon the analysis of other disciplines when justifying and explaining the rule that undertaking a valid promise at law requires the promisor to demonstrate some objective consent to the obligation.14

14For instance, the theologian Thomas Aquinas noted the mental processes preliminary to making a binding vow as (i) deliberation, (ii) a purpose of the will, and (iii) a promise. Similarly, in the seventeenth century, the Scottish jurist James Dalrymple (Lord Stair) seems to have drawn upon the behavioural observation that human beings typically demonstrate three stages of the will when deciding whether or not to commit to an obligation, namely (i) desire, (ii) resolution, and (iii) engagement. The third of these stages is crucial for the law: without some act of engagement to what is desired and has been resolved, no obligation can arise (see Stair, Institutions, I.x.2). The similarity of the analysis of Stair to Aquinas’s is marked, though there is no indication that Stair had this passage of Aquinas

That there be some external conduct manifested by a speaker before he can be held to have undertaken a promise suggests that the crucial perspective for judging a promise is an objective one. This is not to say that the subjective intention of the speaker to promise is unimportant, merely that, in practical terms, such internal, subjective intention can only ever be judged and assessed through externally manifested, and objectively judged, conduct.15 A baldly stated preference for an objective approach, however, skates over the complexity of how one judges and interprets the intention of a speaker from his external conduct. People often use words ambiguously. How should such ambiguous words be interpreted? And what of the speaker who uses a word incorrectly, thinking that its meaning is x, when in fact it is commonly understood to mean y in the context in question? Such questions are very challenging for the courts, touching both upon the fundamental question of whether a promise should be taken to have been intended at all, or, if it should, what promissory content was intended by the promisor in using the words in question. In this work, these questions will primarily be considered in the context of specific topics considered in the later chapters (formation, error, and so forth). They are also, however, quite properly questions which shape and influence the discipline of the construction or interpretation of promises and contracts, a field in which there has been much uncertainty of late in (to choose but two systems) English and Scots law. Such uncertainty has resulted largely from an ongoing philosophical and linguistic debate between judges and academics about whether words have any objective meaning beyond that which contracting parties may choose to give them in a particular context, and whether, if they do, courts should begin the

in mind when framing his own observation. One may also note Grotius’s three ‘modes of speech’ (De iure belli ac pacis, II.xi.2–4).

15There are numerous judicial statements to this effect in relation to voluntarily assumed obligations. For instance, see the following comment of Lord Clarke, delivering the unanimous judgment of the UK Supreme Court in RTS Flexible Systems Ltd v. Molkerei Alois Müller GmbH & Co. KG (UK Production) [2010] UKSC 14: ‘Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations …’. To similar effect, see Lord Steyn in Deutsche Genossenschaftsbank v. Burnhope [1995] 4 All ER 717, 724e: ‘the court must not try to divine the purpose of the contract by speculating about the real intention of the parties. It may only be inferred from the language used by the parties, judged against the objective contextual background.’ The same objective approach is taken in the Draft Common Frame of Reference (DCFR): see Art. II.-4:302.

task of construing a contract from the standpoint of such objective meaning unless a clearly absurd result is reached.16 The debate is also affected by the unresolved question of whether contract should be seen primarily as a private concern of the contracting parties (a view which tends towards a preference for the parties’ subjective understanding of the words they use), or whether contract should be recognised as inevitably having a public aspect, given that contracts may affect third party interests or require to be acted upon by third parties (a view which tends towards a preference for the objective meaning of words).17 The complexity of such debates is, however, beyond the scope of the present enquiry, the focus of which is on the distinction between internal mental processes and external behaviour.

Returning to that focus, given that objectively manifested and interpreted behaviour demonstrating a commitment to act (in other words, to be bound to an obligation to do something), rather than mere internal thought processes, is suggested as the crucial means for determining whether a promise has been formed, what role then does intention have

16The nature of the debate may be appreciated by contrasting the ground-breaking approach to interpretation of Lord Hoffmann in judgments such as Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 WLR 896 and Chartbrook Ltd v. Persimmon Homes Ltd [2009] UKHL 38, an approach which emphasises the subjective understanding attributed by parties to words and the wide context against which such subjective understanding may be judged, with that displayed recently by the Scottish courts, who have expressed a preference for a narrow interpretative context and for beginning with the ‘natural meaning’ of words. Thus, for instance, paraphrasing Lord Mustill’s words in Charter Reinsurance Co. v. Fagan [1997] AC 313, Sir David Edward QC stated in his judgment in Multi Link Leisure Developments Ltd v. North Lanarkshire Council [2009] CSIH 96 (affd., on other reasoning, [2010] UKSC 47) that the court’s enquiry ‘should start (and will finish) by asking what is the ordinary meaning of the words used’ (para. 25). A preference for an objective meaning to words is entrenched in some civil codes: in the Louisiana Civil Code, for instance, Art. 2047 (Meaning of words) provides that ‘[t]he words of a contract must be given their generally prevailing meaning’. Even the further provision of Art. 2048 that ‘[w]ords susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract’, makes sense only on the presumption that the different possible meanings referred to are objectively determinable.

17For instance, a third party may rely on, or be required to enforce, contractual provisions: thus a third party seeking to enforce a benefit in its favour, an insurer or bank with an interest in the contract, or a party such as the keeper of a public register in which the contract has been lodged. A particularly troubling case is that of collective workplace agreements between employers and trade unions: such agreements may be relied upon by many employees, who will naturally give to the words in the agreement their ordinary meaning, and may be wholly unaware of absurd or unusual subjective meanings attached by the contracting parties to the language they have used.

in defining the concept of a promise? Most disciplines would agree that, in theory at least, a speaker must manifest a commitment to the performance of a future act in favour of another (and not just an intention to so commit himself or an intention to act), albeit that that commitment is to be judged objectively.18 So statements whose language merely expresses a hope, intention, or prediction of doing something are excluded as promises: for instance, ‘I hope to pay you the money next week’, ‘I intend to send you a cheque in the post tomorrow’, ‘I expect to be able to leave you my house in my will’, or ‘I will have dinner with you this evening’. But must the speaker (the promisor) also manifest other types of intention? And is any intention on the part of the hearer of the speaker’s words required before a promise may be constituted? Some promissory writers have suggested that some such further indications of intention are required.

To explore these questions further, it is useful to refer to the arguments of some of those writing in the field of linguistic philosophy. This is a specialised field, and not all of its complexities can be considered here. However, the crucial contribution of linguistic philosophers of relevance for present purposes is their categorisation of promises as a form of ‘speech act’. The concept of a speech act may be exemplified by one of its most famous instances in literature:

And God said, Let there be light: and there was light.19

A speech act, like this one from the book of Genesis, denotes an utterance which does not describe a state of affairs (for instance ‘the cat sat on the mat’), but, in the act of its utterance, does something. Consider for instance the words ‘Stand up!’, a phrase which functions as an instruction, so that the speaker, in speaking, does the act of issuing a command. The example quoted from Genesis is a particularly direct speech act: the speech act is a command which, by its very utterance, is immediately given effect to in physical reality by divine power. Not all speech acts are so immediately effective in relation to the act in question, a promise being one such less immediately effective speech act, given that it requires a future performance to bring the promised reality into being.

Promises are categorised by linguistic philosophers as a type of speech act. It is said that a promise, when uttered, does something, because it

18So that an insincerely meant promise which had the appearance of one genuinely meant by the promisor would count as a valid promise, a view supported by Atiyah, who frequently refers to insincere promises as valid promises, and also Robbins, Promising, Intending and Moral Authority, pp. 145–6.

19Gen. 1:3.

a promisee is able to reject a promised benefit, non-compulsion can be assured.27

Hickey’s argument that the hearer must assent to the promise naturally follows from his categorisation of promises as perlocutionary rather than illocutionary speech acts. As noted earlier, other linguistic philosophers do not share his view, and do not require persuasion of the hearer before a promise can be considered to be formed. This does not mean, however, that they necessarily consider that the only type of intention relevant to promises is (as was suggested earlier) the simple intention of the speaker to undertake a commitment by uttering the words in question. Searle, for instance, suggests the following necessary conditions for the making of a promise.28 Some of these conditions (numbers (3) and

(5) – (9)) relate to specific intentions or states of mind that the speaker (S) or hearer (H) must possess when S makes the relevant utterance (t) in the presence of H:

(1)S expresses the proposition p (the promise) in the utterance of t – by which Searle means that there must be present an utterance which can be isolated from the rest of the speech act, and analysed by reference to the following conditions;

(2)in expressing p, S predicates a future act (a) of S;

(3)H would prefer S’s doing a to not doing a, and S believes that H would prefer this;

(4)it is not obvious to both S and that S will do a in the normal course of events;

(5)S intends to do a;

(6)S intends that t will place him under an obligation to do a;

(7)S intends to produce in H the knowledge that t will place S under the obligation to do a;

(8)S intends to produce such knowledge by means of the recognition of his intention; and

27Fried concedes as much – ‘there must at least be the option to refuse or reject not just the benefit, but the promise of the benefit’ (ibid., p. 43) – while remaining unwilling formally to abandon his view that acceptance of a promise is essential, even if he admits that a tacit acceptance will suffice.

28One of Searle’s conditions (which he numbers (1)) has been omitted from this list, as not being relevant to the present discussion, that condition being that ‘normal input and output conditions obtain’: Searle is referring to a collection of basic conditions without which meaningful communication cannot take place, for instance that the speaker and hearer each speak the same language, are conscious of what they are doing, are not deaf, and so forth.

(9)S intends to make his intention recognised by means of the hearer’s knowledge of the meaning of t.

Atiyah has attacked this approach to defining promises on the basis that Searle ‘makes no empirical inquiries of any kind at all as to how people in fact use the concept of promising’.29 As will be seen below, there is force in this criticism, given that some of the conditions Searle lists do not seem to match with statements commonly taken to be promises.

Some of Searle’s list of conditions were not mentioned in the definition of a promise proposed earlier because they were taken for granted,30 while others match up with elements of that working definition, though not in precisely the same terms in which Searle puts them.31 What, more particularly, of Searle’s conditions which relate to intentions or states of mind of the speaker or hearer?

First there is condition (3), that H would prefer S’s doing a to not doing a, and that S believes that H would prefer this. This correlates in part to the definition suggested earlier, which required that a promisor must commit to some performance ‘in favour of’ the promisee. This suggests that the promise must be of benefit to the promisor, rather than being detrimental. Searle also accepts this, as he notes that a commitment to do something disadvantageous to another should be classified as a threat and not a promise.32 However, this does not explain why Searle couches this condition in terms of H’s ‘preference’ and S’s knowledge of this preference. This puts the matter in a subjective fashion, whereas it has been suggested earlier that intent ought to be judged objectively. The same objective approach, it is suggested, out to apply to the assessment of the nature of the beneficial act to be performed: such assessment should be an objective exercise, not one dependent upon

29Atiyah, Promises, Morals and Law, p. 108.

30For instance, condition (1), that there must be some words capable of being isolated as a promise, was assumed for present purposes, though fleshed out to some extent in the earlier discussion of words which can be used to demonstrate promissory intent.

31Thus, condition (2) agrees with the suggestion in the definition of a promise offered earlier that a future act of the promisor must be intended as the subject of the promise, and condition (6) corresponds to the suggestion in the definition that a promise must be a commitment of a promisor to some future performance, though it has been suggested that it is the objective assessment of S’s intention which is crucial, rather than actual subjective intention (for that reason, Atiyah’s objection to an intention to be bound providing the obligatory force of the promise – that this would release the false promisor from being bound – is not a valid one: the false promisor is bound because the objective interpretation of his state of mind is that intent was present).

32Searle, Speech Acts, p. 58.

the subjective opinion of the promisee. The promisor is in no position conclusively to know the subjective state of mind of the promisee: he can only guess at it, if he chooses to. Moreover, such guesswork will be problematic if the promisee’s state of mind is such that he unreasonably considers an objective benefit not to be of benefit to him. Consider the following examples: S’s commitment to H to demolish H’s illegally built house might express an act which H would rather not wish to be done (because H does not want to see his house demolished), but nonetheless it could properly be seen as conferring the objective benefit of putting H into a position of complying with the relevant planning laws and thus arguably ought to be considered a benefit in favour of H. Or, to take another example, S’s statement committing himself to extracting the rotten tooth of H, a child, might be a commitment to undertake an act which H would not wish done (because H is afraid of dental treatment), but nonetheless, as the act can be seen as objectively conferring a benefit on H, it ought surely to qualify as a promise. So, it is suggested that an objective assessment of whether the act in question is ‘in favour of’ another ought to be taken, rather than Searle’s subjective approach, otherwise undertakings such as the two examples suggested here will not qualify as promises.

Condition (4) also seems suspect. Why cannot things which might very well happen in the normal course of things be the subject of a promise? It may be that the promisor wishes to put the matter beyond doubt or publicly to acknowledge an existing duty, or it may be that he wishes to comply with a third party requirement that a promise be made in respect of the act (the requirement for instance might be a legislative one, such as a rule of tax law stating that, if one wishes a transaction to fall within a certain tax regime, it must be supported by a promise).33 It is unsurprising that things which are likely to happen anyway are not usually made the subject of promises, but it seems unduly restrictive to write this in as a requirement of a promise.

33For instance, a charitable individual might be intending to give a certain sum of money to a charity every year for the next few years. The charity might very well know that this is going to happen, because the individual has made such donations every year for a number of years, and has furthermore expressed his wish to continue doing so. Nonetheless, the individual concerned might now decide to make the giving which he was in any event planning to undertake the subject of a legally binding Deed of Covenant, because to do so confers certain tax advantages on him. The point is that sometimes things which we expect to happen in any event can nonetheless be made the subject of binding undertakings, and this may occur for reasons other than the relationship between the promisor and promisee.

Condition (6) addresses an issue – the source of the obligation which the promisor will come under – which was not the subject of treatment in the working definition, on the basis that different types of promise might find their source in different places.34 Searle suggests that the promisor needs to intend that his statement will bind him. That agrees with the law’s analysis (which requires an intention to be bound),35 and it seems a valid requirement so long as it is recognised that such an intention may be tacitly present simply by virtue of the fact that the promisor knows that uttering the words will place him under an obligation because that is what the law (or the moral system) provides. So an intention might be either an intention that the promisor, in speaking, is binding himself, or an intention that in speaking he will be bound by virtue of externally applicable moral or legal norms.

Condition (7) raises the question of whether it makes sense to talk of intending to produce knowledge in someone else’s mind, given that the production of such knowledge is something beyond the control of S. Surely all S can do is utter the words, and hope that H comes into the knowledge that S intends a promise.36

Condition (8) is also suspect – why must S intend this? Surely H’s knowledge that S has come under an obligation by uttering t might not derive from H’s recognising S’s intention that that be so, but rather, for instance, from H’s knowledge that the legal system will impose the requisite obligation upon S. This condition seems too restrictive.

Condition (9) – that S must intend to make his intention recognised by means of the hearer’s knowledge of the meaning of t – suggests that the promisor must intend to bind himself by virtue of the promisee’s hearing and understanding his promise. This too seems somewhat restrictive. It certainly seems correct to suggest that the promisor must intend that some other person must hear and understand the nature of the commitment (so a promise uttered in English to a group of persons who spoke and understood only Swahili would not seem to count as an utterance

34These issues are explored more fully in the next two chapters.

35See for instance the late Spanish scholastic, Lessius, who required that there be an ‘intention of obligating oneself absolutely’, and identified this intention as source of the obligatory power of a promise (De iustitia et iure, 2.18.1); also Rawls, who says ‘promising is an act done with the public intention of deliberately incurring an obligation’ (A Theory of Justice, p. 52).

36A similar point is made by Smith in John Searle, p. 66. Rawls suggests that it is S’s wanting the requisite knowledge to exist in the mind of H which is important, rather than an intention by S that that be so: ‘we want others to know that we recognize this tie [i.e. the promise] and intend to abide by it’ (Theory of Justice, p. 52).