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promises his correspondent abroad to send him a ship-load of corn at a time appointed, and before the time arrive, an embargo is laid upon the exportation of corn: a woman gives a promise of marriage; before the marriage, she discovers that her intended husband is too nearly related to her, or that he has a wife yet living. In all such cases, where the contrary does not appear, it must be presumed that the parties supposed what they promised to be lawful, and that the promise proceeded entirely upon this supposition. The lawfulness, therefore, becomes a condition of the promise; which condition failing, the obligation ceases. Of the same nature was Herod's promise to his daughter-in-law, 'that he would give her whatever she asked, even to the half of his kingdom.' The promise was not unlawful in the terms in which Herod delivered it; and when it became so by the daughter's choice, by her demanding ‘John the Baptist's head,' Herod was discharged from the obligation of it, for the reason now laid down, as well as for that given in the last paragraph.
This rule, 'that promises are void where the performance is unlawful,' extends also to imperfect obligations; for the reason of the rule holds of all obligations. Thus, if you promise a man a place, or your vote, and he afterwards render himself unfit to receive either, you are absolved from the obligation of your promise; or, if better candidate appear, and it be a case in which you are bound by oath or otherwise to govern yourself by the qualification, the promise must be broken through.
And here I would recommend, to young persons especially, a caution, from the neglect of which many involve themselves in embarrassment and disgrace; and that is, ' never to give a promise which may interfere in the event with their duty;' for if it do so interfere, their duty must be discharged, though at the expense of their promise, and not unusually of their good name.
The specific performance of promises is reckoned a perfect obligation. And many casuists have laid down in opposition to what has been here asserted, that where a perfect and an imperfect obligation clash, the perfect obligation is to be preferred; for which opinion, however, there seems to be no reason but what arises from the terms 'perfect' and 'imperfect,' the impropriety of which has been remarked above. The truth is, of two contradictory obligations, that ought to prevail which is prior in point of time.
It is the performance being unlawful, and not any unlawfulness in the subject or motive of the promise, which destroys its validity: therefore a bribe, after the vote is given-the wages of prostitution the reward of any crime, after the crime is committed -ought, if promised, to be paid; for the sin and mischief, by
this supposition, are over, and will be neither more nor less for the performance of the promise.
In like manner, a promise does not lose its obligation merely because it proceeded from an unlawful motive. A certain person, in the lifetime of his wife, who was then sick, had paid his addresses, and promised marriage to another woman: the wife died, and the woman demanded performance of the promise. The man, who, it seems, had changed his mind, either felt or pretended doubts concerning the obligation of such a promise, and referred his case to Bishop Sanderson, the most eminent in this kind of knowledge of his time. Bishop Sanderson, after writing a dissertation upon the question, adjudged the promise to be void; in which, however, upon our principles, he was wrong; for, however criminal the affection might be which induced the promise, the performance, when it was demanded, was lawful—which is the only lawfulness required.
A promise cannot be deemed unlawful where it produces, when performed, no effect beyond what would have taken place had the promise never been made. And this is the single case in which the obligation of a promise will justify a conduct which, unless it had been promised, would be unjust. A captive may lawfully recover his liberty by a promise of neutrality; for his conqueror takes nothing by the promise, which he might not have secured by his death or confinement; and neutrality would be innocent in him, although criminal in another. It is manifest, however, that promises which come into the place of coercion can extend no further than to passive compliances; for coercion itself could compel no more. Upon the same principle, promises of secrecy ought not to be violated, although the public would derive advantage from the discovery. Such promises contain no unlawfulness in them to destroy their obligation; for, as the information would not have been imparted upon any other condition, the public lose nothing by the promise which they would have gained without it.
3. Promises are not binding where they contradict a former promise.
Because the performance is then unlawful, which resolves this case into the last.
4. Promises are not binding before acceptance-that is, before notice given to the promisee; for where the promise is beneficial, if notice be given, acceptance may be presumed. Until the promise be communicated to the promisee, it is the same only as a resolution in the mind of the promiser, which may be altered at pleasure. For no expectation has been excited, therefore none can be disappointed.
But suppose I declare my intention to a third person, who, without any authority from me, conveys my declaration to the promisee is that such a notice as will be binding upon me? It certainly is not; for I have not done that which constitutes the essence of a promise—I have not voluntarily excited expectation. 5. Promises are not binding which are released by the promisee. This is evident: but it may be sometimes doubted who the promisee is. If I give a promise to A of a place or vote for B—as to a father for his son, to an uncle for his nephew, to a friend of mine for a relation or friend of his-then A is the promisee, whose consent I must obtain to be released from the engagement.
If I promise a place or vote to B by A-that is, if A be a messenger to convey the promise, as if I should say: 'You may tell B that he shall have this place, or may depend upon my vote;' or if A be employed to introduce B's request, and I answer in any terms which amount to a compliance with it, then B is the promisee.
Promises to one person, for the benefit of another, are not released by the death of the promisee; for his death neither makes the performance impracticable, nor implies any consent to release the promiser from it.
6. Erroneous promises are not binding in certain cases; as, 1. Where the error proceeds from the mistake or misrepresentation of the promisee.
Because a promise evidently supposes the truth of the account, which the promisee relates in order to obtain it. A beggar solicits your charity by a story of the most pitiable distress; you promise to relieve him, if he will call again. In the interval, you discover his story to be made up of lies: this discovery no doubt releases you from your promise. One who wants your service, describes the business or office for which he would engage you; you promise to undertake it. When you come to enter upon it, you find the profits less, the labour more, or some material circumstance different from the account he gave you: in such case, you are not bound by your promise.
2. When the promise is understood by the promisee to proceed upon a certain supposition, or when the promiser apprehended it to be so understood, and that supposition turns out to be false; then the promise is not binding.
This intricate rule will be best explained by an example. A father receives an account from abroad of the death of his only son; soon after which, he promises his fortune to his nephew. The account turns out to be false. The father, we say, is released from his promise, not merely because he never would have made it had he known the truth of the case, for that alone will not do;
but because the nephew also himself understood the promise to proceed upon the supposition of his cousin's death; or, at least, his uncle thought he so understood it; and could not think otherwise. The promise proceeded upon this supposition in the promiser's own apprehension, and, as he believed, in the apprehension of both parties; and this belief of his is the precise circumstance which sets him free. The foundation of the rule is plainly this: a man is bound only to satisfy the expectation which he intended to excite; whatever condition, therefore, he intended to subject that expectation to, becomes an essential condition of the promise.
Errors, which come not within this description, do not annul the obligation of a promise. I promise a candidate my vote; presently another candidate appears, for whom I certainly would have reserved it, had I been acquainted with his design. Here, therefore, as before, my promise proceeded from an error; and I never should have given such a promise, had I been aware of the truth of the case, as it has turned out. But the promisee did not know this; he did not receive the promise, subject to any such condition, or as proceeding from any such supposition-nor did I at the time imagine he so received it. This error, therefore, of mine must fall upon my own head, and the promise be observed notwithstanding. A father promises a certain fortune with his daughter, supposing himself to be worth so much-his circumstances turn out, upon examination, worse than he was aware of. Here, again, the promise was erroneous, but, for the reason assigned in the last case, will nevertheless be obligatory.
The case of erroneous promises is attended with some difficulty; for, to allow every mistake, or change of circumstances, to dissolve the obligation of a promise, would be to allow a latitude which might evacuate the force of almost all promises; and, on the other hand, to gird the obligation so tight, as to make no allowances for manifest and fundamental errors, would, in many instances, be productive of great hardship and absurdity.
It has long been controverted amongst moralists, whether promises be binding which are extorted by violence or fear. The obligation of all promises results, we have seen, from the necessity or the use of that confidence which mankind repose in them. The question, therefore, whether these promises are binding, will depend upon this-whether mankind, upon the whole, are benefited by the confidence placed on such promises? A highwayman attacks you, and being disappointed of his booty, threatens or prepares to murder you: you promise, with many solemn asseverations, that if he will spare your life, he shall find a purse of money
left for him at a place appointed: upon the faith of this promise, he forbears from further violence. Now, your life was saved by the confidence reposed in a promise extorted by fear, and the lives of many others may be saved by the same. This is a good consequence. On the other hand, confidence in promises like these greatly facilitates the perpetration of robberies; they may be made the instruments of almost unlimited extortion. This is a bad consequence; and in the question between the importance of these opposite consequences, resides the doubt concerning the obligations of such promises.
[Dr Whewell has supplied some additional considerations to this much-quoted case of moral casuistry, tending to set at rest the doubts that seem to hang over it. He remarks, that if the promise were one that it was lawful to make, it was also lawful to keep it. But no law is violated in making the promise to the robbers, and therefore it is not wrong in any moral view to fulfil that promise. As to the expediency of breaking faith with such persons, another circumstance is to be taken into account— namely, that they will, in consequence, no longer spare the lives of their victims.]
There are other cases which are plainer—as where a magistrate confines a disturber of the public peace in jail, till he promise to behave better; or a prisoner of war promises, if set at liberty, to return within a certain time. These promises, say moralists, are binding, because the violence or duress is just; but the truth is, because there is the same use of confidence in these promises, as of confidence in the promises of a person at perfect liberty.
Vows are promises to God. The obligation cannot be made out upon the same principle as that of other promises. The violation of them, nevertheless, implies a want of reverence to the Supreme Being, which is enough to make it sinful.
There appears no command or encouragement in the Christian Scriptures to make vows, much less any authority to break through them when they are made. The few instances (Acts, xviii. 18; xxi. 23) of vows which we read of in the New Testament, were religiously observed.
The rules we have laid down concerning promises, are applicable to vows. Thus Jephtha's vow, taken in the sense in which that transaction is commonly understood, was not binding, because the performance, in that contingency, became unlawful.