within B’s promise, it may be possible to infer from B’s promise that he is also making a promise in C’s favour.

(vi)  Things which are not components of the definition

It should be noted that the definition offered makes no reference to ­certain matters; some of these have been noted above, especially in the section examining the idea of promises as speech acts. For instance, it is not suggested that a promisee has to accept a promise before it can exist (though it has been suggested that a promisee has the power to reject the promised performance). It is further asserted, as a general point, that the effect produced by a promise in the promisee’s mind and in any actions of the promisee are not relevant to the definition of a promise. The focus is properly on the promisor, as it is his intention and actions which may constitute the normative act of promising and may give rise to a binding obligation. Thus, although a promise may, and often does, produce reliance, or trust, or some other effect in the promisee, these are mere secondary results and not of the essence of the promise itself.45 This assertion clearly puts the position adopted here at odds with certain theories of promise, such as reliance theory, discussion of which will follow in the next chapter.

2.  Three crucial qualities of relevance to promises: gratuitousness, conditionality, unilaterality

In addition to the qualities of a promise listed above, fundamental to any general, but especially to any legal, debate about the nature of promise is the question of whether a promise must possess one or more of three important qualities which may pertain to obligations: gratuitousness, conditionality and unilaterality. These terms have not usually been defined with care in debates about promise, and this lack of clear definition has been productive of much confused and unnecessary arguments about promises and about whether contract concerns promise. It will be essential then to define these terms clearly here, and to keep the definitions in mind in the succeeding discussion. It should be noted that the three qualities discussed below are applicable across the field of obligations,46

45A similar view is taken by Kimel, From Promise to Contract, pp. 14–32, who, in criticising Fried’s views, argues that, though trust usually follows on from the making of a promise, it is not a necessary condition for promising.

46In Ch. 1 of my book Obligations, I endeavoured to test the qualities of gratuitousness and unilaterality in relation to the various obligations recognised by the law.

not just within promise or contract, so that a proper understanding of the concepts aids comprehension of obligations as a class, and not just promises.47

(a)  Gratuitousness

Obligations may be gratuitous or non-gratuitous (otherwise ‘onerous’), the two being opposites. What does an obligation’s being gratuitous mean?

Sloppiness of thought has crept in through discussions about the nature of obligations proceeding simply on the basis that gratuitous means ‘done for nothing’. That is indeed the general idea underlying the concept of gratuitousness, but one needs to explore more precisely what the concept of ‘done for nothing’ means. On close inspection, it might signify one of at least three different situations: (i) something done without the legal right to compel any counter-performance; (ii) something done without the hope or expectation of a counter-performance; or (iii) something done which in fact is not met with any reciprocal counter-performance, whatever the hope of, or legal entitlement to, counter-performance might be.

To explain the difference between these three meanings, consider the following examples:

(1)I promise to give a friend £500 as a birthday present. I neither hope for, nor am I legally entitled to, nor do I receive, anything in return.

(2)I promise to give a friend a gift for his new home, in the hope that he will invite me to the party to celebrate his moving in, but without any entitlement to compel him to invite me.

(3)I promise to pay an electrical store for a new laptop computer in return for its promise to supply the computer.

(4)I promise to pay for a friend’s rail ticket, without hoping for anything in return or being entitled to require any such reciprocal benefit. My friend decides nonetheless to thank me by giving me a bottle of wine.

In the first example, the promisor neither hopes for anything to accrue to him as a result of his promise, nor can he compel any such thing, nor in fact does he receive anything in return for it. On any understanding of the concept of gratuitousness, we would say that the promise is gratuitous. All that the promisor might conceivably get by way of his promise is pleasure in making the promise and at seeing the reaction of the promisee

47They are, in other words, qualities which relate to the ‘general part’ of the law of obligations as it was labelled by Smith in ‘The Limits of Contract’, pp. 1–24.

when the gift is given, but such a benefit is too ephemeral for it to count as a benefit in a legally relevant sense.48

In the second example, the promisor makes the promise hoping, or perhaps even expecting, that he will receive the benefit of an invitation to the promisee’s party, but he cannot compel an invitation to the party. Some might say that the presence of this expectation or hope means that the promise is not gratuitous. On such an understanding of gratuitousness, it is the subjective intention to act out of liberality or generosity which is important; a subjective hope of receiving something in return for undertaking an obligation is sufficient to mean that it is not gratuitous, rather it is onerous. The difficulty with this view, however, is that it requires us to classify an obligation based upon a subjective intention of a party. While such a subjective intention may be determinable in many cases, or we may suspect such intention to be present, in some cases it may be impossible to form such a determination or suspicion. This would result in its not being possible to say whether or not the obligation was gratuitous, an undesirable result. A subjective approach also raises the difficulty of what happens where the motives for undertaking an obligation are mixed, partly gratuitous, and partly not. An answer to that problem may be that, so long as the predominant motive is gratuitous, a transaction will count as gratuitous, but an assessment of predominance of motive must be equally (if not more) difficult to undertake.

In the third example, the promise described is essentially what is classified in some jurisdictions as a ‘contractual promise’. Here the party undertaking the commitment is able legally to compel a counter-performance from the other party in exchange for his performance. One could describe

48The first example describes the concept of gratuitousness in the law of Louisiana, as, under the Louisiana Civil Code, a gratuitous contract is one entered into for reasons of liberality (its cause, or motivation) and which results in obligations only on the contracting party pledging a performance (its effect): ‘A contract is gratuitous when one party obligates himself to another for the benefit of the latter, without receiving anything in return’ (CC Art. 1910). The words ‘for the benefit of’ refer to the motivation, or cause, of the undertaking. The Code goes on to provide a definition of a unilateral contract: a contract is ‘unilateral when the party who accepts the obligation of the other does not assume a reciprocal obligation’ (CC Art. 1907), a definition which focuses entirely on effect, without reference to motivation. Some scholars argue that the result is that in Louisiana Law a gratuitous contract and a unilateral contract are one and the same thing, the differ­ ence being that the focus in the idea of a gratuitous contract is the motivation for the undertaking, whereas the focus in the idea of a unilateral contract is the effect produced. A different view is that, while all gratuitous contracts are unilateral, not all unilateral contracts are gratuitous, in other words that gratuitous contracts are merely a subset of unilateral ones.

such a legal entitlement as the crucial issue for determining whether or not an obligation is gratuitous or not. The benefit of such a definition of gratuitousness is that it is judged by reference to an objective criterion, not by reference to subjective mental intent. There ought thus, on such an approach, to be little if any difficulty in determining whether an obligation such as a promise is gratuitous or not.

In the final example, though the promisor neither hopes for, nor is entitled to, anything from making his promise, the promisee just happens to give him a reciprocal benefit. If a definition of gratuitous is based upon whether as a matter of fact a promisor has received something in return, then this promise is not gratuitous, but onerous.

On any of the three definitions of gratuitous, example (1) is gratuitous. The other examples describe circumstances which may or may not be gratuitous depending on which definition of gratuitous is chosen. It has been suggested that an objective determination is preferable, which rules out using the second possible definition of gratuitous (the definition focusing on the hope or expectation of the promisor). That leaves the possibility of basing the definition either on the legal ability to compel a counterperformance, or on the question of whether, as a matter of fact, a counterperformance is received, either of which is an objective question. While it is a matter for specific legal jurisdictions to choose which definition they prefer, it is suggested that the preferable definition should be the promisor’s ability to compel a counter-performance. If, instead, the focus is on the factual question of whether a benefit has been received, this would mean that a contracting party who had made a promise to perform, but who was met with a breach of the other party’s duty to counter-perform, and did not therefore as a matter of fact receive the expected counterperformance, would be held to have made a gratuitous contractual promise­ . That would seem rather an odd conclusion. For that reason, it is suggested that gratuitousness is best judged by whether or not the party undertaking the obligation can or cannot compel a counter-performance at the time he undertakes the obligation. It is therefore that understanding of the idea of gratuitous which shall be used in this work.

Having settled on an understanding of gratuitousness, one then has to ask: must promises be gratuitous? This is clearly crucial, as if a promise must be gratuitous, then the common model of a contract, where A is described as offering something to B in exchange for B offering something to A, could not be characterised as an exchange of promises. For Common lawyers, used to describing a contract as an exchange of promises, the decision is therefore clear: promises need not be gratuitous (according

to the definition suggested here), rather they may either be gratuitous or onerous (and in contracts of exchange, they must be onerous).49 On the other hand, in a jurisdiction which was not used to describing contracts as an exchange of promise, there would seem to be less of a need to include onerous undertakings of a future performance as promises. Such jurisdictions might decide, for whatever reason, to take a more restrictive view of promise, and say that it was only the gratuitous commitment to a future performance which can count as a promise. Such an attitude would necessitate defining contract in some other way (for instance, as an agreement, rather than in promissory terms). We shall return to this question later when looking at the relevance of promises to contractual theory in more detail.

Outside legal debate, however, ordinary speech seems to encompass both gratuitous and onerous promises within the concept of a promise (and so would accord with the understanding of the Common law), though it is difficult to suggest whether or not occurrences of one type are more prevalent than the other, and if so which.50 In the conception of non-legal disciplines, promises may certainly be exchanged, and thus given in the hope of or with the ability to compel something in return for the giving of a promise. For present purposes then, it seems sensible to allow a definition of a promise to be wide enough to encompass both gratuitous and non-gratuitous (onerous) promises. However, such a concession is made on the basis of the meaning ascribed to the concept of gratuitous here, namely an obligation undertaken without the ability to compel any counter-performance in favour of the party undertaking the obligation.

A final definitional point worth noting is that where non-gratuitous (onerous) promises are exchanged in a contract, the contract is sometimes said to be mutual. It is certainly possible to say that an onerous contract, one in which both parties are bound to certain performances, can in the

49The Common law tradition follows in the footsteps of the late scholastics, who held that promises might be either gratuitous or onerous. Thus, Lessius states: ‘the word promise is general and can be extended to all contracts. I can promise a thing subject to the other party taking on some burden, for example, to give a price or some other thing, or I can do so gratis’ (De iustitia et jure, 2.18.1; cf. his earlier statement, at 2.17.1, that both donations and promise are ‘not properly speaking contracts since if they produce an obligation it is only in one party’, a statement which it seems must be interpreted as referring to unilateral promise, given his assertion that the word promise can be extended to contracts).

50Atiyah states that it is ‘highly probable’ that the non-gratuitous promise is the more common type of promise, though he gives no evidence for this assertion: Promises, Morals and Law, p. 143.