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Valparaiso Univ. Law School

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Thursday, March 18, 2010

Promise and Contract: Jane Austen's Take

Jane AustenWhile thinking about the problems relating to promise and contract explored by Michael Pratt, I came across this scene from Chapter 22 of Jane Austen's Persuasion.  The setting, of course, is Bath.  The characters are Charles Musgrove and his wife, Mary, the pathetic, self-pitying and miserable sister of Jane Austen's protagonist, Anne Elliot.  Charles has just announced, with something like triumph, that he had procured tickets for them all to go to the theater the following evening.  His wife interrupts him:

Good heavens, Charles! how can you think of such a thing? Take a box for to-morrow night! Have you forgot that we are engaged to Camden Place to-morrow night? and that we were most particularly asked to meet Lady Dalrymple and her daughter, and Mr Elliot, and all the principal family connexions, on purpose to be introduced to them?  How can you be so forgetful?"

"Phoo! phoo!" replied Charles, "what's an evening party?  Never worth remembering. Your father might have asked us to dinner, I think, if he had wanted to see us. You may do as you like, but I shall go to the play."

"Oh! Charles, I declare it will be too abominable if you do, when you promised to go."

"No, I did not promise. I only smirked and bowed, and said the word `happy.' There was no promise."


To me, this example illustrates the tension between our ordinary language sense of what it means to make a promise and Professor Pratt's focus on promissory intent.  As the doctrine of promissory estoppel recognizes, manifestations that could be reasonably expected to induce reliance and do induce such reliance can create a legal obligation.  But we ordinarily think of promissory estoppel as an equitable supplement to contracts law that addresses our moral intuition that, even absent a contract, it is wrong to allow people to induce others to rely to their detriment on one's representations.  I substitute the word "manifestations" for "promise" here because I think Professor Pratt is right that what the law enforces are not "promises" but legal undertakings -- that is, expressions of intent to be legally bound by a statement of future intention.

So, Charles Musgrove did not "promise" in Professor Pratt's sense, but he may have promised in the sense of the law.  His manifestations might also be regarded by others in his social circle as a promise, which suggests some tension between our intuitions about what constitutes promising and Professor Pratt's understanding of that phenomenon.  I think this places me in the camp that Professor Pratt labels "deflationist."  I suppose I've been called worse. 

In short, we might use the word "promise" to describe both statements that bind us because through them we undertake a moral obligation and moral obligations that arise because others reasonably rely on our representations regardless of our intent.  Professor Pratt thinks there are good reasons for keeping these different types of moral obligation separate, but I am not persuaded that anything is gained from the distinction.

[Jeremy Telman]

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