Introduction to the Legal Significance of Promise Making

• Author: J.H. Verkerke
• Pages: 1-55

I. Introduction to the Legal

Significance of Promise

Making

The goal of this chapter is to introduce you to some of the

fundamental questions that organize our study of contract law and

theory. At least initially, we will focus exclusively on the judge-made

rules of the “common law.” Prior judicial decisions—often referred

to as “precedents”—comprise the only legally authoritative source of

the common law. However, the American Law Institute (ALI), a

prestigious organization of judges, professors and practicing lawyers,

has promulgated “Restatements” for many core areas of the law,

including contracts. We will study various sources of contract law in

more detail soon, but for the moment, bear in mind that the

Restatement (Second) of Contracts (1981), [hereinafter Restatement

(Second)], quoted repeatedly in these reading materials is a highly

influential formulation of the law of contracts.

1. What is a Promise?

We begin by considering what it means to make a promise. Let’s

forget for just a moment about the law and think instead what

normal people mean when they talk about a promise. Suppose that

your professor tells you on the first day of class: “I promise that

you’ll enjoy Contracts this semester.” Consider how we should

understand this “promise.” Does the fact that the statement is oral

rather than in writing make any difference? Is there anything about

the circumstances in which this statement is made that undermines

your confidence that the professor intends for this “promise” to be

binding?

Now read the following sections of the Restatement (Second), and

think about how the legal use of the term “promise” relates to our

common sense understanding of the word.

Restatement (Second) of Contracts

§ 1. Contract Defined

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A contract is a promise or a set of promises

for the breach of which the law gives a

remedy, or the performance of which the law

in some way recognizes as a duty.

§ 2. Promise; Promisor; Promisee;

Beneficiary

(1) A promise is a manifestation of intention

to act or refrain from acting in a specified

way, so made as to justify a promisee in

understanding that a commitment has been

made.

(2) The person manifesting the intention is

the promisor.

(3) The person to whom the manifestation is

addressed is the promisee.

(4) Where performance will benefit a person

other than the promisee, that person is a

beneficiary.

§ 3. Agreement Defined; Bargain Defined

An agreement is a manifestation of mutual

assent on the part of two or more persons. A

bargain is an agreement to exchange promises

or to exchange a promise for a performance

or to exchange performances.

§ 4. How a Promise May Be Made

A promise may be stated in words either oral

or written, or may be inferred wholly or partly

from conduct.

1.0.1 Discussion of Promise

Try to identify the essential elements or components of the legal

meaning of the word “promise.” Can you draw a diagram to

represent how these elements relate to one another?

Now think about why people make promises. Why not just perform

the act? Why talk about it first?

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1.1 Principal Case –

Bailey v. West

Our first principal case continues to explore what it means to make a

promise. As you read the court’s opinion, think carefully about how

you would describe the facts or tell the story of what happened.

Consider also the “procedural posture” of the case. How has the

litigation progressed? Who sued whom? What has happened so far?

Who won at each stage and what did they get in the way of remedies?

How does the Rhode Island Supreme Court resolve the case?

Bailey v. West

Supreme Court of Rhode Island

105 R.I. 61, 249 A.2d 414 (1969)

PAOLINO, Justice.

[1] This is a civil action wherein the plaintiff [Bailey] alleges

that the defendant [West] is indebted to him for the

reasonable value of his services rendered in connection with

the feeding, care and maintenance of a certain race horse

named “Bascom's Folly” from May 3, 1962 through July 3,

1966. The case was tried before a justice of the superior court

sitting without a jury, and resulted in a decision for the

plaintiff for his cost of boarding the horse for the five

months immediately subsequent to May 3, 1962, and for

certain expenses incurred by him in trimming its hoofs. The

cause is now before us on the plaintiff's appeal and

defendant's cross appeal from the judgment entered pursuant

to such decision.

[2] The facts material to a resolution of the precise issues

raised herein are as follows. In late April 1962, defendant,

accompanied by his horse trainer, went to Belmont Park in

New York to buy race horses. On April 27, 1962, defendant

purchased Bascom's Folly from a Dr. Strauss and arranged to

have the horse shipped to Suffolk Downs in East Boston,

Massachusetts. Upon its arrival defendant's trainer discovered

that the horse was lame, and so notified defendant, who

ordered him to reship the horse by van to the seller at

Belmont Park. The seller refused to accept delivery at