[146] CHAPTER XI.

Of Promises.

I. 1 THE order of our work has led us to the obligation which arises from promises. And here we at once find opposed to us a man of no ordinary erudition, Francis Connanus. For he maintains this opinion, that, jure naturæ ac gentium, those pacts which have not a consideration (συνάλλαγμα), do not induce any obligation; though no doubt they may be properly fulfilled, if the matter be such as it would have been, without promise, proper and congruent to some virtue to perform.

2 He adduces for his opinion not only the dicta of jurists, but also these reasons: (1) That there is a fault no less in him who rashly trusts a person who makes a promise for no cause: (2) That there is a great danger thrown upon the fortunes of all, if men be judged to be bound by a promise, which often proceeds more from ostentation than from real purpose; or from a purpose, but a light and inconsiderate one: (3) That it is right to leave something to each person’s honesty, and not to bind men to the necessity of an obligation:—that it is disgraceful not to fulfil promises, not because such a course is unjust, but because thereby the levity of the promise is detected.

He also uses the authority of Cicero, who says, that promises are not to be kept when they are useless to those to whom they are made; nor if they do more harm to you than good to those to whom you made them. (De Off. i. 10.)

If the matter be no longer open, in consequence of some step having been taken, he pronounces that what you ought to do, is, not what is promised, but what is for the interest of the promisee:—that the pacts, not having any force of themselves, receive force from the con147tracts of which they are parts or additions, or from the delivery of the thing in question; whence arise, partly actions, partly exceptions to actions, and prohibitions of suit.

But pacts which have an obligatory force according to the Laws, as pacts with stipulations and some others, have, he holds, this force by the help of the laws, which have this efficacy, that what of itself is proper, they make to be necessary.

3 But this opinion cannot stand, in the general form in which he propounds it. For, in the first place, it follows therefrom that pacts between kings and different peoples, so long as nothing thereof is performed (re integrâ) have no force; [the parties being bound by no common instituted law;] especially in those places in which no regular form of treaties and engagements has been introduced.

And again, no reason can be found why laws, which are in a certain way a common pact of the people, and are so called by Aristotle and Demosthenes, should be able to give obligatory force to pacts; while the will of a person, directed especially, and by every means, to put himself under an obligation, should not be able to do so; especially when the Civil Law offers no impediment.

Add to this, that when the will is sufficiently signified, the ownership of a thing may be transferred, as we have already said: why then may there not also be a transfer of a jus in personam, a right to the performance of a person’s promise, or a right to transfer ownership, (which is a less thing than ownership itself,) or a right to do anything; since we have the same right over our actions as over the things which belong to us?

4 To this is to be added the consent of wise men; for as it is said by jurists, that nothing is so natural as that the will of the owner when he wishes to transfer to another a thing which is his, should be held valid; in the same way it is said that nothing is so congruous to the mutual confidence of mankind as to perform the agreements which have been made among men. Thus the edict concerning paying money agreed to be paid at a certain time, when in the person so agreeing no cause had preceded except consent, is said to favour natural equity. Paulus also says, that a man owes us a debt, when, jure gentium, he ought to give it us, we relying upon his good faith; in which place, first, the word ought implies a certain moral necessity: nor can we admit what Connanus says, that we rely upon a man’s good faith, only when some step has been taken in agreement with the promise: for in that place Paulus was speaking of an action for recovering what has been paid and was not owing; which falls to the ground, if the money be paid in virtue of a compact of any kind whatever: for then, even before any step had been taken (re adhuc integra,) by Natural Law and jure gentium, it ought to be paid; even if the Civil Law did not lend its aid, to cut off occasions of litigation [by stopping the action after it has been paid].

5 Cicero, in his Offices, gives so much weight to promises, that he 148calls Good Faith the foundation of Justice. So Horace: and the Platonists often call Justice, Truth, or Truthfulness, which Apuleius translates Fidelitas. Simonides, as quoted in Plato’s Republic, says that justice is, to return what is entrusted to us, and to speak the truth.

6 But in order that the thing may be well understood, there are three ways of speaking concerning the future, which must be carefully distinguished.

II. The first degree is an assertion explaining our present purpose with respect to some future action: [I intend to give you:] and that this may be free from fault, a requisite is, a truth of the thought for the present time, but not that the thought be persevered in. For the human mind has not only a natural power of changing its purpose, but also a right. And if there be any fault in the change, or accessory to it, that is not intrinsic to the change, as a change, but belongs to the matter; for instance, if the first intention was the better of the two.

III. The second degree is, when the will determines itself for a future time, with a sufficient sign to indicate the necessity of persevering; [I will give you]. This may be called pollicitation; it is obligatory without the Civil Law, either absolutely or conditionally, but it does not give to another person a proper right. For in many eases it happens that there is an Obligation in us, and no corresponding Right in another^*: as appears in the duties of mercy and gratitude; and to these, the duty of constancy or fidelity is similar. Therefore in virtue of such pollicitation, the thing so promised cannot be retained, or he who made the promise be compelled by Natural Law to fulfil it.

IV. 1 The third degree is, when to such a determination is added a sign of wishing to confer a proper right upon another: [I promise you:] which is a perfect promise, with the same effects as alienation of ownership. For it is either a way to the alienation of the thing, or it is an alienation of some portion of our liberty. To the former head belong promises to give, to the latter, promises to do.

A strong example of what we say is furnished by the Scriptures, which teach us that God himself, who cannot be compelled by any instituted law, would act contrary to his nature, except he performed his promises. [See the passages.] Whence it follows, that the performance of promises proceeds from the nature of immutable justice, which is, in a certain way, common to God and to all rational creatures. So Prov. vi. 1. A promise is spoken of as indissoluble: and a vow. Numb. xxx. 4,5,6. So the word ὑπόσχεσις is explained by Eustathius. So Ovid. [See.]

2 This being understood, we shall have no difficulty in replying to Connanus’s arguments. For the dicta of jurists respecting nude pacts regard the rule which was introduced by the Roman laws, which 149made stipulation the certain sign of a deliberate purpose. Nor do we deny that similar laws existed in other nations. What law obliges as to perform what we have promised to any one? says Seneca, speaking of human law [Natural Law], and a promise not made with formal solemnity.

3 There may, however, by Natural Law, be other signs of a deliberate purpose, besides the formality of stipulation, or anything else which the Civil Law requires as a ground for an action. But what is done not of deliberate intention, we also do not hold to have the force of obligation, as Theophrastus also had noted. And even as to that which is done with deliberate intention, but not with a purpose of conceding a proper right to another, we deny that it gives to any one a right of demanding the performance by Natural Law: though, in this case, we allow that not only a propriety, but even a moral necessity arises.

As to what is adduced from Cicero, we shall treat below, when we have to speak of the interpretation of pacts.

V. But let us see what conditions are required to produce the force of a perfect promise.

1 First there is required the use of reason: and therefore madmen, and idiots, and children, cannot make a promise. With regard to minors, the case is different; for although these are conceived not to have a sufficiently stable judgment, as also women are not, yet this state is not perpetual, nor is it of itself sufficient to nullify the force of a promise.

2 When a boy begins to have the use of his reason, cannot be defined with certainty: but the inference is to be made from his daily acts, or from that which commonly happens in each country. So among the Hebrews, a promise was valid which was made by a boy after he was thirteen years old, or a girl after twelve. Elsewhere, the Civil Laws, moved by good reasons, pronounce certain promises of wards or minors to be void, not only among the Romans, but also among the Greeks, as Dio Chrysostom notes; and against some such promises, they introduce the benefit of restitution. But these are properly effects of Civil Law, and therefore have nothing to do with Natural Law and jus gentium; except that when they obtain, it is agreeable to Natural Law that they be observed.

Hence even if a stranger make an agreement with a citizen, he is bound by the same laws: because he who makes a contract in any place, is under the laws of the place as a temporary subject^*.

3 It is plainly another matter if the compact be made at sea, or in a desert island, or by letter between persons absent. For such pacts are governed by Natural Law only; as also the pacts of sovereigns as such. For in the private acts of sovereigns, those laws have place which make the act void, when it is in their favour, not to their detriment.

150 VI. 1 The discussion of pacts made in error^* is sufficiently perplexed. For a distinction is commonly made between an error as to the substance of a thing, and an error not about the substance: as, whether fraud was the occasion of the contract: whether the person with whom the contract was made was a party to the fraud: whether it be an action stricti juris or bonæ fidei^†. For, according to these variations, writers pronounce some acts void, others, valid, but open to be rescinded or remodelled at the choice of him who is injured. But the greater part of these distinctions come from the Roman Law, both the old Civil Law, and the decisions of Prætors; and some of them are not sufficiently true or accurate.

2 But the way to find the natural truth, is opened to us by a principle concerning the force and efficacy of laws, which is received by an almost universal consent:—that if the law be founded on the presumption of some fact, which fact is really not so, then that law does not oblige: because, the truth of the fact falling, the whole foundation of the law is wanting. But when the law is founded on such a presumption, is to be collected from the matter, words, and circumstances of the law. In like manner then we shall say, that when a promise is founded on the presumption of some fact which is not really so, that by Natural Law it has no force: because the Promiser does not agree to the promise except on a certain condition which in reality did not exist: to which we must refer Cicero’s question concerning the person who, falsely believing his son to be dead, made another person his heir. [De Oratore, I. 38.]

3 But if the promiser has been negligent in inquiring into the matter, or in expressing his intention, and another person has thereby suffered loss, the promiser will be bound to make that loss good; not by the force of his promise, but as having done damage by his fault; of which head we shall hereafter treat. But if there was indeed an error, but one on which the promise was not founded, the act will be valid, a true consent being there not wanting. But in this case also, if he to whom the promise is made, fraudulently give occasion to the error, he will be bound to make good whatever damage the promiser has done from that error, from that other head of obligation. If the promise was founded partly in error, it will be valid as to the remaining part.

VII. I Of promises made through fear^‡, the treatment is no less entangled. For here too a distinction is commonly made between a fear which is grave, either absolutely, or with reference to the person who fears, and a slight fear; between fear impressed justly and unjustly; by the promisee, or by another: also between acts of liberality, and acts of mutual promise. And according to these diversities, some acts are declared void; others, revocable at the choice of the 151promisee; others, cases for entire restitution; not without great variety of opinion on these particular cases.

2 I am entirely of the opinion of those who think that, setting aside the Civil Law, which may either take away or diminish an obligation, he who has promised any thing under fear, is bound^*: for here was consent, not conditional, as in the case of erroneous promises, but absolute. For as Aristotle says, he, who in fear of shipwreck, throws his goods overboard, would wish to keep them, conditionally, if there was not the danger of shipwreck; but, absolutely, he is willing to lose them, considering the circumstances of time and place.

But I also think that this is certainly true; that if the promisee has produced a fear, not just, but unjust, even though slight, and if the promise was occasioned by this, he is bound to liberate the promiser if the promiser desires it; not because the promise was invalid, but on account of the damage wrongfully done: what exception to a demand this gives rise to, we shall explain in its own place below.

3 That some of our acts are rescinded on account of fear impressed on us by another person than the one with whom we treat, is a matter of Civil Law, which often also makes either void or revocable acts freely done; on account of infirmity of judgment. And what we have said above, of the force and efficacy of Civil Laws, is to be understood as repeated here.

What is the efficacy of an Oath in making promises hold, we shall see below.

VIII. 1 As to what concerns the matter of promises, a condition to produce a perfect promise is, that it is, or may be, in the rightful disposal of the promiser. Whence, first, promises are not valid, to do an act in itself unlawful; for such a right no one has nor can have. But a promise, as we have said above, receives its force from the right of the promiser, and cannot be extended further. When Agesilaus was interrogated concerning a promise which he had made, he said: If it be just, well and good: if not, I said but I did not promise.

2 If the matter be not now in the power of the promiser, but may at some time be so, the efficacy of the promise will be suspended: because then, the promise must be supposed to be made under the condition, if the thing come into his power. But if the condition under which the thing may come into the power of the promiser, be also potestative [such as he can himself bring about or accelerate], the promiser is bound to do whatever is morally equitable, in order that the condition may be fulfilled.

3 But in such cases also, the Civil Law is wont to make many things void for the sake of utility, which by Natural Law would be obligatory; as a promise of future marriage, made by a man or woman who has a spouse alive; and not a few things done by minors or sons of families.

152 IX. It is commonly made a question, whether a promise made for a cause naturally vicious is valid by Natural Law; as if any thing be promised for committing homicide. Here it is evident enough that the promise itself is vicious, for it is made that another person may be induced to commit a crime. But what is done viciously, is not necessarily void, as to its jural effects; as appears by the case of a prodigal donation. There is however this difference; that when the donation is made, the viciousness ceases: for there is no vice in the thing being left in the hands of the donatary. But in promises made for a vicious cause, the vice remains as long as the crime is not perpetrated: so long, the fulfilment of the promise, as a stimulus to evil, has a taint in it, which ceases when the crime is committed. Whence it follows, that up to that time, the efficacy of such a promise is suspended, as we said above, in speaking of promising a thing which to not ours to give: but the crime being perpetrated, the force of the obligation comes into play, having been intrinsically in existence from the first, but barred by the vice which was connected with it. We have an example of this in Judah, who paid to Thamar her hire, deeming her a harlot.

But if the wrong of the promisee gave occasion to the promise, or there be an inequality in the contract, how these things are to be remedied, is another question, hereafter to be considered.

X. What is promised, for a consideration which was due without the promise, is still to be paid, if we look at Natural Law, according to what we have said above of the acceptance of a thing belonging to another. (II. x. 11 and 12.) But here also the damage produced by extortion, or the inequality of the contract, will require to be repaired, according to rules hereafter to be given.

XI. As to what concerns the mode of making the promise, that, as we said of the transfer of ownership, requires an external act; that is, a sufficient sign of the will, which sometimes may be a nod, but more frequently, the voice or writing.

XII. We may also be bound by means of another man, if there be clear evidence of our purpose in appointing him as our instrument either for this special purpose, or in a general manner. And in a general appointment, it may happen that the person appointed binds us, when he acts contrary to our will signified to him alone. For here there are two distinct acts of willing: one by which we obliged ourselves to hold valid whatever he does in this kind of business; another, in which we put him under an obligation to us, not to act except according to our directions, known to him and not to others, which is to be noted in those things which Envoys promise for kings in virtue of their written powers, when they go beyond their secret instructions.

XIII. Hence we may understand that an exercitorian action (one against ship-owners for the contracts of the captain,) and an institorian action, (one against the owner of a trading concern for the contracts of the acting agent,) depend on Natural Law, being, not so much 153distinct kinds of action, as qualities of actions. But it has been improperly added by the Roman Law, that all the ship-owners are bound severally, as well as jointly, by the acts of the captain. This is neither in accordance with natural equity, which is satisfied if each owner is responsible for his own share; nor useful to the public; for persona are deterred from sending adventures in ships, if they are in fear that they may be indefinitely involved by the acts of the captain. And therefore in Holland, where commerce has long flourished, that Roman law neither prevailed formerly, nor does now; on the contrary, it is the law that, in an exercitorian action, even the whole body of owners are not held responsible, beyond the value of the ship and cargo.

XIV. In order that a promise may transfer a right, acceptance is required here no less than in the transfer of ownership; but in such a way that here also a precedent asking is understood to remain in force, and to have the effect of acceptance. Nor is this contradicted by what is appointed in the Civil Law, that offers made to the Public are binding; which reason has induced some persons to judge that by the Law of Nature, the act of the promiser alone suffices: for the Roman Law does not say this, that the force of such an offer or pollicitation is complete before acceptance; but it forbids it to be recalled, so that it may always be accepted: which effect is not a result of Natural Law, but of Civil Law; very similar to what the jus gentium has introduced concerning infants and idiots. For with regard to such persons, both the purpose of taking possession of things which require such a step, and the purpose of acceptance when that is required, are supplied by the law.

XV. The question is also raised, whether it is sufficient that acceptance is made, or whether it must be notified to the promiser before the promise receives its full effect. And it is certain that a promise may be made either way: and also in this way: I desire that it be valid, if accepted: or in this manner: I desire that it be valid, if I shall understand that it has been accepted. And in matters which regard mutual obligation, the latter sense is presumed: but in promises merely liberal, the former meaning rather is supposed to prevail, except the contrary appear. [Barbeyrac dissents from this.]

XVI. Hence it follows, that before acceptance, since the right has not yet been transferred, a promise can be recalled without injustice, and even without inconstancy, if it were really made with the intention that it should begin to be valid on acceptance. Also a promise may be revoked, if the promisee die before acceptance: because the acceptance seemed to be referred to the promiser [apparent typo for promisee] himself, not his heirs. For it is one thing to wish to give a right which will pass to the heirs; another thing to wish to give it to the heirs: for it makes a great difference on whom the benefit is conferred. And this was Nerat’s answer, that he did not think that the prince had conceded to a person defunct what be had conceded to him supposing him alive.

154 XVII. 1 A promise may also be revoked by the death of him who was chosen to declare to the promisee the promiser’s will; for the obligation ended in his words. The case is different in a messenger who carries letters merely, and who is not the instrument of the obligation, but the carrier of the obligatory instrument; therefore letters indicating consent may be carried by any one. We must distinguish also between a minister who is elected to make known the promise, and him who is elected to make the promise. In the former case, the revocation will have its force, even if it do not become known to the minister: in the other case, the revocation is void, because the right of promising was dependent on the will of the minister or agent, which will, the revocation not being yet known, was free from all fault. So also in the former case, the donation may be accepted, even the donor being dead; as being perfect on one side, although revocably: as may be seen on a large scale in ambassadors: in the other case, the donation cannot be accepted, because it was not really made, but only ordered to be made.

2 But in a doubtful case, the will of the person who gives the order is understood to be, that the order be fulfilled, except some great change take place, as the death of the person ordering. But there may be conjectures which may favour another judgment, which are readily to be admitted, in order that a donation which was directed to be made for a pious cause may subsist. And in like manner may a controversy be decided which was once agitated, whether an action will hold against the heir of a person entrusted with such a charge, on which subject M. Drusus the prætor and Sextus Julius gave different edicts.

XVIII. 1 Also controversies often occur respecting acceptance made for another: in which a distinction is to be made between a promise made to me, to give a thing to another, and a promise conveyed in the name of him to whom the thing is to be given. If the promise is made to me, omitting the consideration whether the performance of the promise is to my private interest, (which was introduced by the Roman law,) it seems, by the Law of Nature, that I acquire the right of effecting, by my acceptance, that the right promised pass to the other person: so that in the intermediate time the promise cannot be revoked by the promiser; but I, to whom the promise was made, have power to remit it. For that sense is not repugnant to Natural Law, and agrees best with the words of such a promise: nor is it a matter uninteresting to me, that a person should acquire a benefit through me.

2 But if the promise be conveyed in his name to whom the thing is to be given, it is to be distinguished whether he who accepts has either a special mandate to accept, or a commission so general that such acceptance may be included in it; or have not such commission. When such a mandate has proceeded, I do not think that any further distinction is to be made, (as the Roman Laws direct,) 155whether the person be his own master or not, but that by such acceptance the promise becomes perfect: because consent may be given and signified by a minister. For I am supposed to wish what I have put in the power of another, if he too wishes it. But, failing such a mandate, if another, to whom the promise was not made, accepts, the promiser being willing, the effect will then be this; that the promiser will not have power to revoke his promise, before he whom the promise concerns, has determined that it shall be valid or invalid: but so that, in the intermediate time, he who has accepted the promise cannot remit it, because be was not employed to receive any right, but to bind the good faith of the promiser in maintaining a proposed benefit: so that the promiser, if he revoke, acts against good faith, but not against the right of any one.

XIX. From what has been said, it may be collected what is to be decided concerning a burthen added to a promise. For this may be done, so long as the promise is not yet completed by acceptance, nor made irrevocable by an especial engagement. But a burthen, added for the convenience of a third party, may be revoked, as long as it is not accepted by that third party: although there are not wanting, in this as in other questions, those who think otherwise. But to a person who looks rightly at the matter, the natural equity will appear evident, so that it will not need many proofs.

XX. This also is often disputed, how a promise founded in error can recover its force, if the promiser wishes to stand by his promise. And the same question may be asked concerning promises, which are void by the Civil Law on account of fear or other causes, if the cause afterwards have ceased. For to confirm these, they require only an internal act, which, conjoined with the former external act, they think suffices to produce an obligation. Others, not satisfied with this, because an external act cannot be a sign of a subsequent internal act, require a new promise expressed and accepted. The middle opinion is the true one: that an external act is required, but not expressed in words, when the retention of the thing promised by the promisee, and its relinquishment on the part of the promiser, or any similar event, may suffice to signify consent.

XXI. This also is not to be omitted, in order that Civil Law and Natural Law may not be confounded; that promises which have no cause expressed, are not void by Natural Law, any more than donations of property.

XXII. Also that he who has promised an act on the part of another, is not bound to the extent of the interest of the promisee, provided he has not omitted to do what he could on his own part, to obtain the doing of the thing promised; except there be words, or the nature of the business, such as to induce a stricter obligation. As if he had performed his engagement, says Livy, because it did not depend on him that it was not performed.