§ 1.13 What Is a Promise?

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The term ''promise'' must continually be used in any statement of the law of contracts. The act constituting an offer and the act constituting an acceptance may each consist in a promise. One of the most common definitions of the term ''contract'' itself is that it is a promise directly or indirectly enforceable at law. A definition of the term ''promise'' is, therefore, suggested as follows: A promise is an expression of commitment to act in a specified way, or to bring about a specified result in the future, or to take responsibility that the result has occurred or will occur, communicated in such a way that the addressee of the expression may justly expect performance and may reasonably rely thereon.

The definition of the Restatement of Contracts (Second) § 2(1) is: ''A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.'' This definition is less comprehensive than the definition herein or that contained in the first Restatement of Contracts.n1 It is, however, fleshed out by definitional material in its comments and it is believed that its definition is not substantially in conflict with this treatise. Definition of promise in terms of ''commitment'' provides a useful metaphor. The term ''commitment'' preserves its core meaning in the phrases, ''the judge committed the prisoner to Attica,'' and ''the traveller committed the luggage to the baggage-handler.'' A promise hands over a bit of the promisor's freedom to the promisee.

It should be observed that the express words used in making a promise do not always specify conduct on the part of the promisor as the object of expectation by the promisee. Thus, if A promises B that C will not disclose a trade secret, B's ultimate goal is conduct on the part of C, and is not in terms conduct on the part of the promisor, A.n2 It is believed, however, that A is promising and that B is being led to expect conduct on the part of A that will be sufficient to induce the desired non-disclosure on the part of C. If conduct on A's part sufficient to attain this purpose turns out to be impossible or unsatisfactory then it is full indemnification by A that is expected, inasmuch as A has taken responsibility for C's conduct with respect to the trade secret.n3

In order to constitute a promise, the expression of intention by the promisor is not required to be in words. It may be made by the use of sign language or by any other conduct that under the existing circumstances has a promissory meaning. Promises may be tacit, implied, or inferred, as well as express. If a person has reason to know that his or her words or other conduct may reasonably cause another to believe that a promise is being made and such belief actually results, a promise has been made even though the speaker or writer of the words does not intend to convey such a meaning.n4 For example, although both folklore and philosophy distinguish between promises and threats, there is no doubt that language intended to menace, reasonably, in context, can be understood to be promissory.n5

Legal Topics:

For related research and practice materials, see the following legal topics:

Contracts LawFormationOffersGeneral OverviewContracts LawConsiderationEnforcement of PromisesGeneral OverviewContracts LawConsiderationGeneral Overview

FOOTNOTES:

(n1)Footnote 1. The definition accepted by Restatement, Contracts, § 2, is as follows:

''(1) A promise is an undertaking, however, expressed, either that something shall happen, or that something shall not happen, in the future.

''(2) Words which in terms promise the happening or failure to happen of something not within human control, or the existence or non-existence of a present or past state of facts, are to be interpreted as a promise or undertaking to be answerable for such proximate damage as may be caused by the failure to happen or the happening of the specified event, or by the existence or non-existence of the asserted state of facts.''

U.C.C. § 3-102(1)(c) has a definition of promise in the context of commercial paper. ''A 'promise' is an undertaking to pay and must be more than an acknowledgment of an obligation.'' Its limited purpose is discussed in official comment 2 to the section.

This section is quoted in Cain v. Allen Electric & Equipment Co., 346 Mich. 568, 78 N.W.2d 296, 301 (1956) . A corporate board adopted a resolution with respect to ''severance pay.'' This was held to be an offered promise, accepted by the employee's continuing to serve for the prescribed period.

In Granfield v. Catholic University, 530 F.2d 1035, 1040 (D.C.Cir.1976) , cert. denied, 429 U.S. 821 , the court held that amorphous statements, expressed goals, and (stated) aims do no constitute promises.

''A promise is a declaration by any person of his intention to do or to forbear from anything at the request or for the use of another. A proposal when accepted becomes a promise.'' This is an attempt to give ''promise'' a legal meaning that differs from its ordinary meaning. Finlay v. Swirsky, 103 Conn. 624, 632, 131 A. 420, 423 (1925) .

In Cederstrand v. Lutheran Brotherhood, 263 Minn. 520, 117 N.W.2d 213 (1962) , there is a long and intelligent discussion of ''promise.'' The court said: ''we must take care to distinguish between statements meant to express merely present intention and those meant to give an assurance as to a future event.'' The evidence in this case is reported in great quantity. It is not improbable that some courts would have held that it was sufficient to support the jury's verdict finding a promissory intention by inference therefrom. But this treatise does not dissent from the court's decision that the many statements and conduct of the defendant's officers indicated nothing more than expressions of general policy and intention, and that the plaintiff's own conduct indicated that she had not herself interpreted their words as expressing a promise of the kind on which her suit was based.

In Cabaud v. Federal Ins. Co., 37 F.2d 23 (2d Cir.1930) , the court held that an application for insurance on a vessel ''for account of lienors'' was not a promise (or a ''promissory warranty'') by the applicant that the proceeds should go to discharge liens and not otherwise. The court said: ''a declaration that the policy was for the benefit of the lienors, even though that be construed as meaning that all the proceeds would go to them, was not necessarily a promise to the underwriter, for a promise is an assurance, an 'undertaking,' Restatement of the Law of Contracts, § 2(1). To be such the hearers must understand that they may rely upon it; humans say much about future events that does not commit them. Ordinarily the hearers must have an interest in the fulfillment of what is said; otherwise, it will be seldom, if ever, that they can suppose it directed to them, or intended to be the basis for their conduct.''

See, also:

U.S. - E.I. Du Pont de Nemours & Co. v. Claiborne-Reno Co., 64 F.2d 224 (8th Cir.1933) , where the court's sound discussion of promise is combined with a retrograde application of the doctrine of consideration.

Conn. - Shelly v. Bristol Sav. Bank, 63 Conn. 83, 87, 26 A. 474, 19 L.R.A. 599 (1893) .

Ky. - Hoskins v. Black, 190 Ky. 98, 226 S.W. 384 (Ky.App.1920) .

N.J. - Esslinger's Inc. v. Alachnowicz, 68 N.J.Super. 339, 172 A.2d 433 (1961) . The court held that a dealer's words, asserted to be a promise of a ''lifetime'' distributorship agency, were intended only as a statement of ''intention.''

(n2)Footnote 2. See Tode v. Gross, 127 N.Y. 480, 28 N.E. 469 (1891) ; also Sinclair Refining Co. v. Jenkins Petroleum Process Co., 99 F.2d 9 (1st Cir.1938) , where the defendant contracted to induce its employees to make applications for patents and to assign them to the plaintiff.

(n3)Footnote 3. See Wilson, Can One Promise to Love Another?, 64 Philosophy 557 (1989).

(n4)Footnote 4. Restatement, Contracts, § 5: ''... a promise in a contract must be stated in such words either oral or written, or must be inferred wholly or partly from such conduct, as justifies the promisee in understanding that the promisor intended to make a promise.''

This section is substantially preserved but reworded in Restatement of Contracts (Second) § 4: ''A promise may be stated in words either oral or written, or may be inferred wholly or partly by conduct.''

See Chapter 25 dealing with Implication.

In Barcroft Woods, Inc. v. Francis, 201 Va. 405, 111 S.E.2d 512 (1959) , a contract for the sale of a lot provided: ''It is further understood that the lake is to be cleaned out up to lot 685 by Barcroft Lake Shores Inc.,'' a third party that owned the marshy land. This provision was held to be a promise by the seller that the third party would turn the marsh into a lake.

(n5)Footnote 5. In East Providence Credit Union v. Geremia, 103 R.I. 597, 239 A.2d 725 (1968) , the financing institution wrote the borrower as follow: ''If we are not notified of a renewal policy within ten days, we shall be forced to renew the policy for you and apply this amount to your loan.'' This dunning letter was deemed to be a promise upon which the borrower could rely.

Conversely, in Centric Corp. v. Morrison-Knudsen Co., 1986 OK 83, 731 P.2d 411 (Okl.1986), a take-it-or-leave-it offer of settlement of $1.4 million, together with other factors, was deemed a wrongful threat and a predicate for the application of the doctrine of duress.