Inquiring readers: Recently I ran across the Contracts Prof Blog, a member of the Blog Professor Blogs network. Professor Franklin G. Snyder kindly granted me permission to reprint in full the post contributed by Professor Jeremy Telman of Valparaiso University on March 18, 2010. Professor Telman discusses a promise made in Chapter 22 of Persuasion:
Cassandra Austen's watercolor of her sister Jane, c. 1810. Image at the National Portrait Gallery, London
Promise and Contract: Jane Austen’s Take
While 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]
Estoppel (definition from the Business Dictionary):
Legal rule of evidence (and not a cause of action) which (1) prevents a party from making an allegation or denial that contradicts what it had previously stated, or what has been legally established, as the truth, (2) supports a claim for damages of the party that had a good-faith reliance on a misleading representation of another party.
Click on image.
I have always thought it interesting that once a couple are engaged there seems to be a legally binding aspect to wed in British literature. In the US we haven’t heard of such a thing. It’s not something you can sue for here unless there’s been a marriage, to my knowledge.
Raising children and teaching them one encounters that “fine line” between what a promise is and isn’t. “He said I could have it” is interpreted by the recipient as “It belongs to me now,” but is interpreted by the “donor” as “I let him/her borrow it”. Those tend to be the trickiest moral situations in my 2nd grade classroom.
Then of course Karen, there is that situation where both sides SWAP an item but within half an hour one of them, has changed their mind and wants to swap back.
Swapping was banned in our school because of the mental stress swapping situations caused the teachers and the hours of negotiation that ensued. If one child had taken their swapped item home then phone calls to parents ensued and if one “swapee,” had swiftly swapped their item on to a third party, the tortuous untangling of the toxic web caused by, “free trade,”was nuclear in it’s devastation.
PHew!! I’m retired now. When I teach nowadays I just walk away from it all at the end of the day.
Writing as an American lawyer, there actually is a legal concept regarding an engagement to be married. If one party backs out, the other may sue for “breach of promise.” We don’t see many cases these days, but there was one in the news lately. A groom got cold feet at the last moment, and the jilted bride sued him for her costs — renting the reception hall, deposit to the caterers and florist, her wedding gown, etc. I think she’s got a good case.
I’m not sure about English law after the Reformation, but under medieval Catholic church law, a betrothal was as binding as a wedding, and had to be discharged by the Church before either party could remarry. I think one of Henry VIII’s manuevers to get rid of Anne Boelyn was to claim she was pre-contracted to marry Henry Percy and therefore not free to marry him. Didn’t work, so he chopped off her head.
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I’ve did some research on breach of promise in England’s regency era for a Jane-Austenish novel I was writing. An engagement wasn’t as binding as a marriage, by any means, and it’s disolution not nearly as difficult or scandalous. But the jilted party, either man or woman, could sue when an engagement was broken off. A woman could rightly argue that her chances of ever marrying had been materially damaged (either because she might be considered damaged goods or, especially after a long engagement, because she was now nearly past her “expiration date”). A man might try to recover on the basis of lost expectations. If his intended was rich, he had every reason to anticipate her wealth becoming his, since by law it would pass into his hands at the time of their marriage.
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