that, where reliance liability has a residual, secondary role to play, strict control has to be kept over the limits of such liability, or else it has the potential to undermine the primacy given to declarations of parties’ wills.

(vi)  Conclusion on the competing theories of the moral value of promises

The above discussion of different theories of the source of the morally obligatory force of promises discloses a preference for theories which emphasise the inherent, objective morality of the act of promising, over those which concentrate merely on the subjective effects of promising in specific circumstances. The latter have been characterised as productive of uncertain effects and as failing sufficiently to emphasise personal autonomy and responsibility. Though natural law theories have been largely supplanted by will theories, it would be possible to provide a justification for the moral value of promises which combined both approaches. One might, in natural law fashion, recognise human beings as predisposed by nature to promise, but also say, in will theorist fashion, that we only respect human beings as free, autonomous individuals if we respect the promises they choose to make.

Such theoretical preferences are, however, of secondary importance to an historical narrative of the rise of promissory ideas in the law. Therefore, in the next chapter the history of promising as a legal institution will be traced, in order to explain which theories of the value of promise influenced the development of the law. As will be seen, moral theories of the binding nature of promises were to have a profound impact upon the legal force of the promise in the Western legal tradition.

4.  Powers and sanctions relevant to breach of morally binding promises

Where promises have legal force, then of course legal remedies exist to enforce such promises and legal sanctions apply to the breaking of such promises. But what of breach of promises which are not recognised as having legal effect: how are such purely moral promises regulated?

Evidently such regulation has to be by non-legal means. That would seem to suggest that, for instance, compulsion by the promisee of the promised performance cannot be procured, as non-legal compulsion would lack a lawful basis. Some might argue that, in any event, it is always immoral to compel a promisor to do something, though such an approach

would suggest that legal remedies such as specific performance must be immoral, a view evidently not shared by the law.141

A number of non-legal, regulatory methods might conceivably be employed in cases of breach of promise. The promise breaker might, for instance, suffer social exclusion, that is to say he might be shunned by associates and friends for his faithlessness, or might suffer social pressure to make reparation for the breach of promise. A party who, for instance, breaks off a promise to marry, though he can no longer be subject to a civil legal claim for breach of contract as was once the case, is still likely to suffer social stigma unless the breach of promise occurs for very good reason, and he might be expected by his peer group to repair any harm he has done through his breach of promise. Alternatively, a promise breaker might suffer adverse economic consequences. For instance, a commercial party which has strung another along into thinking that a contract was on the verge of being concluded, only to pull out without stating any good reason, might find that, even if it is not able to be sued at law, its reputation is badly damaged, with a consequent drop-off in business. Such possible social or economic effects of breach of morally binding promises are, however, somewhat hard to assess, and tend to be anecdotal. Additionally, an individual promise breaker might conceivably be a member of a group which enforces adherence to moral obligations through its own structures, such as a religious group or other unincorporated association. In such cases, breach of a morally binding promise might render the promisor liable to sanctions under the rules of the group concerned. Such cases are of interest in that they lie at the interface between law and morality, given that, though the group concerned may be entitled under its own rules to enforce penalties against the promisor in default, its decision might be justiciable before a civil court if its own procedures are not properly followed or if application of those procedures is held to amount to a breach of natural justice or some constitutionally guaranteed right.

At the divide between morality and law, sometimes a promise which appears at first examination to be binding only morally, as for instance one made within a religious context, may in fact be deemed by the courts also to have civil legal effect. A good example of such a promise is seen in the facts of the Canadian Supreme Court case Bruker v. Marcovitz.142

141See on this question Gilbert, ‘Scanlon on Promissory Obligation’. Hart’s view was that coercive force in implementation of moral rights is not improper, and may be justified: see Hart, ‘Are There Any Natural Rights?’.

142[2007] 3 SCR 607.

The case concerned a promise made by a Jewish man to his wife to facilitate a get (a divorce under Jewish law) as soon as their civil divorce had been obtained. Despite the promise, and following the civil divorce, the man consistently refused to agree to the get for fifteen years. The woman eventually sued in the civil courts of Quebec for breach of contract. The man denied that his undertaking was intended to have civil legal effect. The wife won at first instance, but on appeal the court held that, because ‘the substance of the … obligation [was] religious in nature’, the obligation was a moral one and thus unenforceable by the courts.143 On further appeal to the Supreme Court the decision of the appeal court was overturned, it being held that an agreement between spouses to take the necessary steps to permit each other to remarry in accordance with their own religion constituted a valid and binding contractual obligation under Quebec law.144 Abella J, for the majority, noted that whilst Quebec law distinguishes between moral and civil obligations, and that it ‘is true that a party cannot be compelled to execute a moral duty … there is nothing in the Civil Code preventing someone from transforming his or her moral obligations into legally valid and binding ones’.145 The decision is a valuable reminder not only that many civil legal obligations have a moral basis, but also that such moral character is no bar to a promise also having legal effect. The question of whether a morally binding promise is also intended to be clothed with legal effect is a matter of the context of the promise and thus ultimately of the intention of the party or parties concerned.