PROMISE

promise,n.1. The manifestation of an intention to act or refrain from acting in a specified manner, conveyed in such a way that another is justified in understanding that a commitment has been made; a person’s assurance that the person will or will not do something. • A binding promise — one that the law will enforce — is the essence of a contract. [Cases: Contracts 1.C.J.S. Contracts §§ 2–3, 9, 12.]
“By common usage, a promise is an expression leading another person justifiably to expect certain conduct on the part of the promisor. Such an expression is a promise, whether enforceable at law or not. It is indeed an essential element in every contract. Society does not guarantee the fulfillment of all expectations so induced.” William R. Anson, Principles of the Law of Contract 6 n.3 (Arthur L. Corbin ed., 3d Am. ed. 1919).
“[Promise] means not only the physical manifestations of assurance by words or conduct, but also the moral duty to make good the assurance by performance. If by reason of other operative facts the promise is recognized as creating a legal duty, the promise is a contract.” Samuel Williston, A Treatise on the Law of Contracts § 1A, at 4 (Walter H.E. Jaeger ed., 3d ed. 1957).
“It is well to make clear two points at the outset …. The first is that I do not believe that all promises are morally binding; accordingly, I use the term ‘promise’ without prejudging the question whether the promise creates an obligation. The second is that, where a promise does create an obligation, the reason for that may depend upon whether the promise was explicit or implied. There is thus, in my view, a fundamental distinction between explicit and implied promises, and when I use the word ‘promise’ without qualification, I normally mean an explicit promise.” P.S. Atiyah, Promises, Morals, and Law 8 (1981).
2. The words in a promissory note expressing the maker’s intention to pay a debt. • A mere written acknowledgment that a debt is due is insufficient to constitute a promise. [Cases: Bills and Notes 30. C.J.S. Bills and Notes; Letters of Credit § 11.] — promise,vb.
aleatory promise (ay-lee-<<schwa>>-tor-ee). A promise conditional on the happening of a fortuitous event, or on an event that the parties believe is fortuitous. [Cases: Contracts 218. C.J.S. 3832 Contracts §§ 355, 358.]
alternative promise.A contractual promise to do one of two or more things, any one of which qualifies as consideration.
“A promise in the alternative may be made because each of the alternative performances is the object of desire to the promisee. Or the promisee may desire one performance only, but the promisor may reserve an alternative which he may deem advantageous. In either type of case the promise is consideration if it cannot be kept without some action or forbearance which would be consideration if it alone were bargained for. But if the promisor has an unfettered choice of alternatives, and one alternative would not have been consideration if separately bargained for, the promise in the alternative is not consideration.” Restatement (Second) of Contracts § 77 cmt. b (1979).
bare promise.See gratuitous promise.
collateral promise.A promise to guarantee the debt of another, made primarily without benefit to the party making the promise. • Unlike an original promise, a collateral promise must be in writing to be enforceable. See MAIN-PURPOSE RULEE. [Cases: Guaranty 1.]
conditional promise.A promise that is conditioned on the occurrence of an event other than the lapse of time <she made a conditional promise to sell the gold on April 2 unless the price fell below $300 an ounce before that time>. • A conditional promise is not illusory as long as the condition is not entirely within the promisor’s control. [Cases: Contracts 58, 218. C.J.S. Contracts §§ 107, 355, 358.]
corresponding promise.A mutual promise calling for the performance of an act substantially similar to the act called for by the other mutual promise, both acts being in pursuit of a common purpose.
counterpromise. See COUNTERPROMISE.
dependent promise.A promise to be performed by a party only when another obligation has first been performed by another party. [Cases: Contracts 173, 278(1). C.J.S. Contracts §§ 361,
475, 503–505, 510–512.] divisible promises.Promises that are capable of being divided into independent parts.
false promise.A promise made with no intention of carrying it out. Cf. promissory fraud under FRAUD.
fictitious promise.See implied promise.
gratuitous promise.A promise made in exchange for nothing; a promise not supported by consideration. • A gratuitous promise is not ordinarily legally enforceable. — Also termed bare promise; naked promise. [Cases: Contracts 47. C.J.S. Contracts §§ 83–84.]
illusory promise.A promise that appears on its face to be so insubstantial as to impose no obligation on the promisor; an expression cloaked in promissory terms but actually containing no
commitment by the promisor. • An illusory promise typically, by its terms, makes performance optional with the promisor. For example, if a guarantor promises to make good on the principal debtor’s obligation “as long as I think it’s in my commercial interest,” the promisor is not really bound. [Cases: Contracts 10(1). C.J.S. Contracts §§ 105–106, 108–113.]
“An apparent promise which, according to its terms, makes performance optional with the promisor no matter what may happen, or no matter what course of conduct in other respects he may pursue, is in fact no promise. Such an expression is often called an illusory promise.” Samuel Williston, A Treatise on the Law of Contracts § 1A, at 5 (Walter H.E. Jaeger ed., 3d ed. 1957).

implied promise.A promise created by law to render a person liable on a contract so as to avoid fraud or unjust enrichment. — Also termed fictitious promise. [Cases: Implied and Constructive Contracts 1. C.J.S. Implied and Constructive Contracts §§ 2–3.]

“Under some circumstances the promise inferred is called an implied promise and in others it is referred to as a constructive promise. But whichever conclusion is reached, the result is the same. In other words an implied promise and a constructive promise are not treated differently. The theoretical difference between the two is that a promise implied from the conduct of the parties arises by construction of law, only when justice requires it under the circumstances.” John D. Calamari & Joseph M. Perillo, The Law of Contracts § 4–12, at 234–35 (3d ed. 1987).
independent promise.See unconditional promise.
marriage promise.Family law. A betrothal; an engagement to be married. — Also termed agreement to marry; promise to marry; promise of marriage. [Cases: Breach of Marriage Promise
1. C.J.S. Breach of Marriage Promise § 3.]
mutual promises.Promises given simultaneously by two parties, each promise serving as consideration for the other. See bilateral contract under CONTRACT.
naked promise.See gratuitous promise.
new promise.A previously unenforceable promise that a promisor revives and agrees to fulfill, as when a debtor agrees to pay a creditor an amount discharged in the debtor’s bankruptcy.
original promise.A promise to guarantee the debt of another, made primarily for the benefit of the party making the promise. • An original promise need not be in writing to be enforceable. See
MAIN-PURPOSE RULE. [Cases: Frauds, Statute of 23.]
promise implied in fact.A promise existing by inference from the circumstances or actions of the parties. See implied promise. [Cases: Contracts 27. C.J.S. Contracts § 6.]
promise in consideration of marriage.A promise for which the actual performance of the marriage is the consideration, as when a man agrees to transfer property to a woman if she will marry him. • A promise to marry, however, is not considered a promise in consideration of marriage. [Cases: Breach of Marriage Promise 5. C.J.S. Breach of Marriage Promise § 6.]

promise in restraint of trade.A promise whose performance would limit competition in any business or restrict the promisor in the exercise of a gainful occupation. • Such a promise is usu. unenforceable. [Cases: Contracts 116. C.J.S. Contracts §§ 249–251, 253–254, 257–260.]
remedial promise.A seller’s promise to repair or replace goods, or the like, or to refund the price if the goods (1) do not conform to the contract or to a representation at the time of the delivery of the goods, (2) conform at the time of delivery but later fail to perform as agreed, or (3) contain a defect.
unconditional promise.A promise that either is unqualified or requires nothing but the lapse of time to make the promise presently enforceable. • A party who makes an unconditional promise must perform that promise even though the other party has not performed according to the bargain.
— Also termed independent promise. [Cases: Contracts 218. C.J.S. Contracts §§ 355, 358.]
voidable promise.A promise that one party may, under the law, declare void by reason of that party’s incapacity or mistake, or by reason of the fraud, breach, or other fault of the other party. [Cases: Contracts 98. C.J.S. Contracts §§ 137, 139–140, 145, 153–155, 157, 171, 173–174, 185, 188.]

[Blacks Law 8th]