Promise

PROMISE. - It is the cause of an obligatory relationship, unilateral or bilateral, produced by the will of one or more persons who freely and spontaneously bind themselves, in the ways and under the conditions admitted by natural or positive laws, to carry out, gratuitously or upon the fulfillment of an agreed condition, any performance whatsoever, or to abstain from doing anything, in favor of a third party. The overly frequent use of promises and their variety often make a perfect understanding of this institution arduous. It must immediately be noted that various other notions must also be kept in mind, either entirely akin or merely linked, and principally what concerns the matter of contracts (v. CONTRACT), the difference between a promise and a proposal (v.), betrothals (v.), and also the particular nature of the obligatoriness that a promise produces (v. under FIDELITY).

The CIC refers, as regards the matter of contracts, to the laws of individual States (can. 1529); and it contents itself with establishing norms for certain particular contracts, especially concerning ecclesiastical goods (cann. 1530-43); it therefore does not speak ex professo of promises. The only exception, besides can. 1017 which regulates very briefly the matrimonial promise, is constituted by can. 150 §§ 1-2, which establishes that a promise of an ecclesiastical office (v.), not vacant, produces no juridical effect.

A promise can constitute either a simple offer made to others, generally without an obligation of justice, or a true and proper contract, depending on the will itself of the promisor. 1) As a simple offer in favor of a third party, a promise by natural law must be completely spontaneous, not prodigal, gratuitous, known and not refused by the one to whom it is made. Spontaneity is required by the very nature of the promise which, being in this case without any counterpart constituting a remuneration, tolerates no constraint of any kind. Only true and proper physical or moral coercion must be considered as lacking spontaneity, inasmuch as advice or a desire manifested even with a certain insistence by outsiders or by the promisee himself does not produce the effect of eliminating the substantial spontaneity necessary in a promise. Furthermore, the promise must not be prodigal, that is, it must have a justification and be contained within the limits of the social station to which the promisor belongs (in this regard it should be remembered that a completely prodigal promise is, after St. Alphonsus, considered by various theologians to be outright illicit and even invalid). Gratuitousness entails that on the part of the promisee (or of a third party on his behalf) there must not be a performance of a true counterpart juridically ascertainable; acts of pure liberality on the part of the promisee are not excluded, however. Finally, it must be known by the latter and not refused by him; for it is not possible to have precise obligations, different from those of a simple proposal (v.), toward one who is ignorant of what depends exclusively on the will of another, much less toward one who perhaps renounces the offer by a positive act. It is likewise of natural law that every promise be useful in some way to the promisee; for if every purpose, every end, every utility is lacking, the very thing itself is lacking for the promisee; and therefore it is not enough merely that the thing promised be not harmful or dishonest. Still by natural law, a promise can refer to a personal performance or to a performance of a real thing distinct from a personal activity of the promisor. The obligation to keep a promise is one of fidelity alone, consequently light in its nature, inasmuch as non-fulfillment entails nothing but a lie (it is well known that the eighth commandment does not of itself oblige under anything but venial sin). Nevertheless, in particular cases an obligation, even a grave one, of commutative justice may also arise; in that case, however, not only the precise intention of the promisor in this sense is indispensable, but also, at least generally, a certain external solemnity such as, for example, the presence of witnesses or the written form, and moreover a certain harm on the other side in the event of non-fulfillment of the promise. In any case, a promise not expressly translated into a true and proper contract is never presumed to oblige by strict duty of justice, that is, with the burden of restitution in case of failed performance.

2) As a contract, a promise is the cession of a right in favor of a third party who accepts it in order to obtain a corresponding performance. The cession of the right in favor of the third party remains gratuitous even if in exchange for a future or contemporaneous performance, not only because it is generally spontaneous as to its formulation, but also because it is often not proportionate to that performance. Therefore a promise, even if materially remunerated, must not be confused with a sale or with an exchange. In a promise as contract, as in a simple promise, one must above all take into account the will of the promisor, in order to judge the nature of the obligation arising from it; nevertheless it is commonly admitted that from it arise duties of strict justice and consequently, on the part of the promisor, the burden of reparation for eventual damages for failure to execute the performance, and on the part of the promisee the natural right to make good, even by means of occult compensation (v.), both the failed performance and the consequent damages. It is not to be believed that this obligation is of its nature always grave: this depends in part on the will of the promisor, especially as known to the promisee, and always on the quantity of the matter considered in the concrete circumstances.

As for the cessation of the obligation induced by a promise, beyond what is said for contracts in general, it must be held that a pure and simple promise, whether personal or real, ceases forthwith upon the occurrence of circumstances such that, had they been foreseen, they would have induced the promisor not to make it, and always upon the occurrence of his death; a promise as contract, on the other hand, if it is real, passes to the heirs, who must satisfy it with the estate of the deceased; and both the one and the others must moreover discharge themselves also toward the heirs of the promisee should the latter predecease, if it was the intention of the promisor to benefit not the person of the promisee but his family.

Lorenzo Simeone