intended to be a promise), but it is not clear why it must be the promisee who hears and understands the promise. This would prevent promises being made to absent promisees, or to promisees not yet in existence. So all that seems necessary is that the promisor and some other person, even just a third party, hear and comprehend the nature of the promissory utterance,37 though as a matter of practicalities the promisee will need eventually to learn of the promise, and understand its nature as a promise, if it is to be enforced.

This somewhat involved analysis of Searle’s conditions for promising has been undertaken to demonstrate that focusing upon the subjective intention of promisor or promisee when defining the conditions for a promise leads to difficulty. While it seems correct that a promisor must intend to undertake performance of a future act in favour of the promisee when he utters the promissory words, an attempt has been made here to indicate how assessing such an intention must be an objective exercise, and how making reference to any further intentions of the parties both excludes undertakings that ought properly to be considered promises as well as insists upon knowledge by one party of the subjective state of mind of another party which is not practicable.

(ii)  A promise is a commitment to a performance of the promisor

So the statement ‘I promise that the sun will come up tomorrow’ does not relate to any promised conduct of the speaker and so is not a promise. Similarly, a statement by Michael that ‘I promise that Mary will pay you tomorrow’ cannot be a promise of Michael’s unless Michael has the ability to compel Mary’s performance, in which case Mary would be acting on Michael’s behalf and the statement could properly be construed as a promise by Michael. A promisor can of course promise that he will use his best endeavours to ensure that a third party does something, but such a promise creates no duty on the part of the third party.

A promise to tell the truth is more problematic. It might be said that truth-telling is of itself a beneficial act, something of value to the hearer, so that to promise to tell the truth is to commit oneself to perform a ­beneficial service to another. However, that might be to stretch the idea of performance too far. It may be more accurate to classify a so-called

37Melden, ‘On Promising’, takes a similar view to Searle and suggests that both promisor and promisee must be moral agents who hear and comprehend the nature of what is promised as a promissory utterance.

‘promise’ to tell the truth as a declaration made in solemn form, or an oath (if put in oath form, as in ‘I swear to tell the truth’). If that is so, then it serves as an important reminder that the mere use of the word promise does not necessarily make something a promise, at least not in the sense suggested earlier.

(iii)  A promise must manifest more than

an illusory commitment or one which the promisor is patently unable to fulfil

The context in which a statement is made may suggest that, despite the promissory language used, no promise is intended, because either (i) the context suggests that there is no serious commitment to performance,38 as for instance in the case of a boastful or rash promise made in the heat of the moment, a joking promise, a promise of affection (‘I shall love you forever’), or a political promise (‘I promise that this government’s first priority will be education reform’),39 (ii) a promissory intent is present, but the circumstances suggest there is little chance of the commitment being fulfilled, or at least that there is a strong possibility that the commitment may not be fulfilled, for instance the commitment by the alcoholic, given for the twentieth time, that he will give up drinking alcohol for good,40 or (iii) it is clear that the performance promised is one which the promisor has no control over (‘I promise not to bore you during my lecture’41 – clearly the promisor making such a statement has no power over whether or not his listeners will be bored by what he says, as being bored is an entirely subjective reaction of the listener).

In any of these three types of case, despite the use of promissory language, the statement made ought not to be considered a promise.

(iv)  A promise must relate to the future

So, for instance, a statement cannot be a promise if it merely confirms a past action or state of affairs (‘I promise that it was not I who broke your

38For discussion of the idea that promissory language may, in a particular culture or society, not generally be considered to give rise to promissory obligations, see the discussion below at pp. 52–6 of the use of promissory language in Tongan and Iranian society.

39Note in this respect §118 of the German Civil Code (BGB): ‘A declaration of intent not seriously intended which is made in the expectation that its lack of serious intention will not be misunderstood is void.’

40Such commitments by alcoholics to loved ones have been explained from a psychiatric viewpoint as not genuinely promissory but as ‘acts of propitiation’ and ‘an invocation of pity and forgiveness that make use of the syntactic form of the promise, but lack the intention or ability to follow through’ (Schlesinger, Promises, Oaths and Vows, pp. 9, 13).

41An example given by Hickey, ‘A Promise is a Promise’, p. 72.

vase’ or ‘I accept responsibility for the accident’) or confirms a present action or state of affairs (‘I hereby give you my car’ or ‘I promise that I am not having an extra-marital affair’). As such statements do not relate to the future they are not promises, though they may be something else, for instance a conveyance of property which effectually transfers real rights in goods, or a warranty of a present state of affairs. Of course, as argued earlier, the mere presence of a future prediction (as in ‘I will …’ or ‘I intend’) is insufficient to denote promissory intent, so that the element of future performance is a necessary though not sufficient condition for promising.

This requirement of a future action clearly has implications for contractual theory. It might, for instance, be argued that a contractual theory built solely upon the idea of promise would be unable to explain contracts based upon an exchange of goods, money or services, for immediate payment, for instance the immediate purchase of, and payment for, a newspaper, given that, as such transactions indicate the consent of the parties to an immediate exchange, they may appear not to contain any promises as to future conduct. This question is explored in more detail in Chapter 4, where it is suggested that promissory theory can deal with such immediate exchanges. Another possible conclusion, however, would be that promise is merely one means to demonstrate an intention to be bound to an obligation, another means being just the sort of conduct which is demonstrated in transactions where contract formation occurs contemporaneously with performance.

(v)  A promise must state a commitment in favour of another party

So, a statement by the speaker to do something to benefit himself (‘I promise to give up smoking for the good of my health’) is not a promise, even if seriously intended.42 Such statements may however amount to vows, such as a vow of chastity or poverty.43

It is an interesting question whether a promise in favour of another must be made directly to that other (as is held to be the case with an offer of a contract), or whether A might utter in the presence of B a promise to

42Some accounts of promising nonetheless suggest that a promise does not necessitate a promisee: see for instance Downie, ‘Three Accounts of Promising’.

43On the assumption that a divine promisee does not count as a regular promisee, being unable to compel performance of the vow (at least in the present world). See further on vows below, at pp. 39–41.