« AnteriorContinuar »
But observe, that the promiser is guilty of a fraud, if he be privately aware of the impossibility, at the time of making the promise. For when any one promises a thing, he asserts his belief, at least, of che possibility of performing it; as no one can accept or understand a promise under any other sup. position. Instances of this fort are the following. The minister promises a place, which he knows to be engaged, or not at his disposal-A father, in settling marriage articles, promises to leave his daughter an estate, which he knows to be entailed upon the heir male of his family-A merchant pro. mises a ship, or share of a ship, which he is secretly advised is lost at sea-An incumbent promises to resign a living, being previously assured that his re. signation will not be accepted by the bishop. The promiser, as in these cases, with knowledge of the impossibility, is juftly answerable in an equivalent; but otherwife not.
When the promiser himself occasions the impor. fibility, it is neither more nor less than a direct breach of the promise; as when a soldier maims, or a servant disables himself, to get rid of his engage. ments.
2. Promises are not binding, where the performance is unlawful.
There are two cases of this; one, where the un. lawfulness is known to the parties, at the time of making the promise ; as where an asassin proinises his employer to dispatch his rival or his enemy; a servant to betray his masier ; a pimp to procure a mistress ; or a friend to give his assistance in a scheme of seduction. The parties in these cases are not obliged to perform what the promise requires, be. cause they were under a prior obligation to the contrary. From which prior obligation what is there to dilo charge them ? their promise-their own act and deed—but an obligation, from which a man can difcharge himself, by his own act, is no obligation at all, The guilt therefore of such promises lies in the
making, not in the braking them; and if, in the interval betwixt the promise and the performance, a man so far recover his reflection, as to repent of his engagements, he ought certainly to break through them.
The other case is, where the unlawfulness did not exift, or was not known, at the time of making the promise ; as where a merchant promises his correia pondent abroad, to send him a lip-load of corn at a iime appointed, and before the time arrives, an embargo is laid upon the exportation of corn--A woman gives a promise of marriage; before the marriage, the discovers that her intended husband is too nearly related to her, or that he has a wife yet living. In all such cases, where the contrary does not appear, ju must be presumed, that the parties supposed what they promised to be lawful, and that the promite pro. ceeded entirely upon this supposition. The lawful. ness therefore becomes a condition of the promise ; and where the condition fails, the obligation ceases. Of the same nature was Herod's promise to his daughter-in-law, " that he would give her whatever " The asked, even to the half of his kingdom." The promile was rot unlawful, in the terms in which Herod delivered it; and when it became so by the daughter's choice, by her dema ding “ JOHN the Bapull's head," Herod was discharged from the obo ligation of it, for the reason now laid down, as well as for that given in the last paragraph.
This rule, “ that promiles are void, where “ the " performance is unlawful," extends also to imper. fect obligations ; for the reaton of the rule holds of all obligations. Thus, if you promise a man a place, or your vote, and he afterwards render himself unfit to receive cither, you are abfolved from the obligation of your promile; or, if a better candidate appear, and it be a cale in which yo'ı are bound by oath, or oiler wife, to gvern yourtilf by the qualification, ile promite must be broken through.
And here I would recommend, to young persons especially, a caution, from the neglect of which, many involve themselves in embarrassment and disgrace; and that is, « never to give a promise 66 which may interfere in the event with their “ duty;" for if it do so interfere, their duty must be discharged, though at the expence of their promise, and not unusually of their good name.
The specific performance of proinises is reckoned a perfect obligation. And inany casuists have laid down, in opposition to what has been here asserted, that, where a perfect and an imperfect obligation clash, the perfect obligation is to be preferred. For which opinion, however, there seems to be no reason, but what arises from the terms “ perfect” and « inperfect,” the impropriety of which has been remarked above. The truth is, of two contradictory obligations, that ought to prevail which is prior in point of time.
It is the performance being unlawful, and not any unlawfulness in the subject or motive of the promise, which destroys its validity ; therefore a bribe, after the vote is given; the wages of prostitution; the reward of any crime, after the crime is committed, ought, if promised, to be paid. For the sin and mischief, by this supposition, are over, and will be neither more nor less for the performance of the promise.
In like manner, a promise does not lose its obli. gation, merely because it proceeded from an unlawful motive. A certain person, in the life-time of his wife, who was then sick, had paid his addresses, and promised marriage to another woman-the wife died; and the woman demanded performance of the promise. The man, who, it seems, had chang, ed his mind, either felt or pretended doubts concerning the obligation of such a promise, and referred his case to Bishop SANDERSON, the most eminent in this kind of knowledge, of his time.
Bishop SANDERSON, after writing a differtation upon the question, adjudged the promise to be void. In which however, upon our principles, he was wrong; for, however criminal the affection might be, which induced the promise, the performance, when it was demanded, was lawful; which is the only lawfulness required.
A promise cannot be deemed unlawful, where it produces, when performed, no effect, beyond what would bave taken place had the promise never beca made. And this is the single case, in which the ob. ligation of a promise will justify a conduct, which, unle's it had been promised, would be unjuít. A captive may lawfully recover his liberty, by a promise of neutrality; for bis conqueror takes nothing by the promise, which he might not have secured by his death or confinement : and neutrality would be innocent in him, although criminal in another. It is manifest, however, that promises which come into the place of coercion, can extend no farther than to pallive compliances; for coercion itself could compel no more. l'pon the same principle, promiles of secrefy ought not to be violated, al. thougb the public would derive advantage froin the dilcovery. Such promises contain no unlaufulse's in them, 1o de troy their obligation; for, as the information would not have been imparied upon any other condition, the public lole nothing by the promile, which they would have gained withou: it.
3. Promises are not binding, where they contra. dict a former promise.
Because the performance is then unlawful, which relulves this cate into the last.
4. Fromises are not binding before acceptance ; that is, before notice given to the promilce, for, where the promile is bercficial, it notice be given, acceptance may be presumed. Until the promie be communicated to the promisce, it is the same only
as a resolution in the mind of the promiser, which may be altered at pleasure. For no expectation has been excited, therefore none can be disappointed.
But suppose I declare my intention to a third person, who, without any authority from me, conveys my declaration to the promisee; is that such a notice as will be binding upon me? It certainly is not: for I have not done that which constitutes the essence of a promise I have not voluntarily excited expectation.
5. Promises are not binding which are released by the promisee.
This is evident; but it may be sometimes doubt. ed who is the promisee. If I give a promise to A, of a place or vote for B; as to a father for his son ; to an uncle for his nephew; to a friend of mine, for a relation or friend of his ; then A is the promisee, whose consent I must obtain, to be released from the engagement.
If I promise a place or vote to B by A, that is, if A be a messenger to convey the promise, as if I should say, “ you may tell B, that he shall have this 6 place, or may depend upon my vote;" or if A be employed to introduce B's request, and I answer in any terms which amount to a compliance with it, then B is the promisee.
Promises to one person, for the benefit of ano. ther, are not released by the death of the promisee. For his death, neither makes the performance impracticable, nor implies any consent to release the promiser from it.
6. Erroneous promises are not binding in certain cases ; as,
1. Where the error proceeds from the mistake or mifrepresentation of the promisee.
Because a promise evidently supposes the truth of the account, which the promisee relates in order to obtain it. A beggar solicits your charity by a story of the most pitiable distress-you promise to relieve