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CHAP. V.

PROMISES.

I. From whence the obligation to perform promises arises. II. In what sense promises are to be interpreted. III. In what cases promises are not binding.

I. From whence the obligation to perform promises arises. They who argue from innate moral principles suppose a sense of the obligation of promises to be one of them; but, without assuming this, or any thing else, without proof, the obligation to perform promises may be deduced from the necessity of such a conduct to the wellbeing, or the existence, indeed, of human society. Men act from expectation. Expectation is in most cases determined by the assurances and engagements which we receive from others. If no dependence could be placed upon these assurances, it would be impossible to know what judgment to form of many future events, or how to regulate our conduct with respect to them. Confidence, therefore, in promises is essential to the intercourse of human life; because, without it, the greatest part of our conduct would proceed upon chance. But there could be no confidence in promises if men were not obliged to perform them : the obligation therefore to perform promises is essential to the same ends, and in the same degree. Some may imagine, that if this obligation were suspended, a general caution and mutual distrust would ensue, which might do as well: but this is imagined, without considering how, every hour of our lives, we trust to and depend upon others; and how impossible it is to stir a step, or, what is worse, to sit still a moment, without such trust and dependance. I am now writing at my ease, not doubting (or rather never distrusting, and therefore never thinking about it), that the butcher will send in the joint of meat which I ordered; that his servant will bring it; that my cook will dress it; that my footman will serve it up; and that I shall find it upon table at one o'clock. Yet have I nothing for all this but the promise of the butcher, and the implied promise of his servant and mine. And the same holds of the most important as well as the most familiar occurrences of social life. In the one the intervention of promises is formal, and is seen and acknowledged: our instance, therefore, is intended to show it in the other, where it is not so distinctly observed. II. In what sense promises are to be interpreted. Where the terms of promise admit of more senses than one, the promise is to be performed “in that sense in which the promiser apprehended, at the time, that the promisee received it.” It is not the sense in which the promiser actually intended it that always governs the interpretation of an equivocal promise; because, at that rate, you might excite expectations which you never meant, nor would be obliged to satisfy. Much less is it the sense in which the promisee actually received the promise; for, according to that rule, you might be drawn into engagements which you never designed to undertake. It must therefore be the sense (for there is no other remaining) in which the promiser believed that the promisee accepted his promise. This will not differ from the actual intention of the promiser, where the promise is given without collusion or reserve: but we put the rule in the above form, to exclude evasion in cases in which the popular meaning of a phrase, and the strict grammatical signification of the words differ; or, in general, wherever the promiser attempts to make his escape through some ambiguity in the expressions which he used. Temures promised the garrison of Sebastia, that if they would surrender, no blood should be shed. The garrison surrendered; and Temures buried them all alive. Now Temures fulfilled the promise in one sense, and in the sense too in which he intended it at the time; but not in the sense in which the garrison of Sebastia actually received it, nor in the sense in which Temures himself knew that the garrison received it: which last sense, according to our rule, was the sense in which he was in conscience bound to have performed it. From the account we have given of the obligation of promises, it is evident that this obligation depends upon the easpectations which we knowingly and voluntarily excite. Consequently, any action or conduct towards another, which we are sensible excites expectations in that other, is as much a promise, and creates as strict an obligation as the most express assurances. Taking, for instance, a kinsman's child, and educating him for a liberal profession, or in a manner suitable only for the heir of a large fortune, as much obliges us to place him in that profession, or to leave him such a fortune, as if we had given him a promise to do so under our hands and seals. In like manner, a great man, who encourages an indigent retainer; or a minister of state, who distinguishes and caresses at his levee one who is in a situation to be obliged by his patronage; engages, by such behaviour, to provide for him.—This is the foundation of tacit promises. You may either simply declare your present intention, or you may accompany your declaration with an engagement to abide by it, which constitutes a complete promise. In the first case, the duty is satisfied if you were sincere at the time; that is, if you entertained at the time the intention you expressed, however soon, or for whatever reason, you afterwards change it. In the latter case, you have parted with the liberty of changing. All this is plain: but it must be observed, that most of those forms of speech, which, strictly taken, amount to no more than declarations of present intention, do yet, in the usual way of understanding them, excite the expectation, and therefore carry with them the force of absolute promises. Such as, “I intend you this place”—“I design to leave you this estate”—“I purpose giving you my vote”—“I mean to serve you.” In which, although the “intention,” the “design,” the “purpose,” the “meaning,” be expressed in words of the present time, yet you cannot afterwards recede from them without a breach of good faith. If you choose therefore to make known your present intention, and yet to reserve to yourself the liberty of changing it, you must guard your expressions by an additional clause, as “I intend at present,”—“If I do not alter,” —or the like. And after all, as there can be no reason for communicating your intention, but to excite some degree of expectation or other, a wanton change of an intention which is once disclosed, always disappoints somebody; and is always for that reason wrong. There is, in some men, an infirmity with regard to promises, which often betrays them into great distress. From the confusion, or hesitation, or obscurity, with which they express themselves, especially when overawed or taken by surprise, they sometimes encourage expectations, and bring upon themselves demands, which, possibly, they never dreamed of. This is a want, not so much of integrity as of presence of mind. III. In what cases promises are not binding. 1. Promises are not binding where the performance is impossible. But observe, that the promiser is guilty of a fraud, if he be secretly 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 the possibility of performing it; as no one can accept or understand a promise under any other supposition. Instances of this sort 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 promises a ship, or share of a ship, which he is privately advised is lost at sea: —An incumbent promises to resign a living, being previously assured that his resignation will not be accepted by the bishop. The promiser, as in these cases, with knowledge of the impossibility, is justly answerable in an equivalent; but otherwise not. When the promiser himself occasions the impossibility, 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 engagements. 2. Promises are not binding when the performance is unlawful. There are two cases of this: one, where the unlawfulness is known to the parties at the time of making the promise; as, where an assassin promises his employer to dispatch his rival or his enemy; a serwant to betray his master; 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, because they were under a prior obligation to the contrary. From which prior obligation what is there to discharge them? Their promise—their own act and deed. But an obligation, from which a man can discharge himself by his own act, is no obligation at all. The guilt therefore of such promises lies in the making, not in the breaking of 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 exist, or was not known, at the time of making the promise; as where a merchant promises his correspondent abroad, to send him a ship load of corn at a time appointed, and before the time arrive an embargo

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