V. On Promise

What is the order of matters to be treated? Having explained the general doctrine of contracts, we now make a step toward their various species. We shall speak first of gratuitous contracts; then of onerous ones.

What is a promise? A promise is a deliberate and spontaneous obligation of fidelity, made to another concerning some good and possible thing. - Deliberate and spontaneous: because through it we freely assume an obligation toward another, so that we may confer some benefit on him. Hence an indeliberate or half-deliberate promise, extorted by fear or fraud, gives birth to no obligation. S. Th. 2. 2. q. 89. a. 7 ad 3. Obligation of fidelity; for by a promise we ordinarily oblige ourselves only from faith, or the virtue of fidelity, by which deeds correspond to words. Concerning some good thing: for a promise concerning a bad thing gives birth to no obligation, according to R. 60 of Law in the Sixth: In evil promises it is not expedient to keep faith. This is to be understood even if the promise had been firmed by oath; for according to R. 58 of Law in the Sixth: An oath furnished against good morals is not obligatory. And possible; for according to R. 6 of Law in the Sixth: No one can be obligated to the impossible. - C. A. 861.

You will resolve: A promise differs from a simple proposal in this, that one promising obliges his fidelity to another, or himself from the virtue of fidelity, or even of justice; but one proposing does not oblige himself to another, but only determines himself in the present to do or omit something in the future. Hence he who does not keep a simple proposal, for example of fasting or of paying certain prayers, per se does not sin, unless he is obligated from elsewhere to doing something similar; but only the ugliness of inconstancy follows, beyond and against his intention. S. Th. 2. 2. q. 88. a. 1; Lugo q. 22. n. 1.

Does a promise not yet accepted oblige? A promise does not oblige before acceptance by the promisee, that is, of him to whom the promise is made, or without it. It is proved: Because an active right on the part of the promisee must result from his own acceptance; and therefore without this, neither can a passive obligation in second act result on the part of the promisor. Moreover, every pact must be perfected by the consent of each party making the pact. Therefore also a promise. C. A. 861.

You will resolve: Therefore before acceptance a promise is revocable by the promisor, because before acceptance it gives birth to no obligation and still remains in the power of the promisor. From C. A. 862, if the promise is verbal, it must be accepted immediately; if written, acceptance must be made and notified in the time established by law; before that time it cannot be revoked, but after it has elapsed it is no longer obligatory. But someone can accept through another chosen for this, or through another who has care of him, for example a father for a son, a religious for a monastery, a Prelate for his Church, a wife for a husband. For he is considered to constitute one person morally with him. From C. A. 881, no one can make or accept a promise through another, except in cases determined by law. A promise, whether made through a messenger or through a mandatary, if revoked before acceptance, does not hold.

But if it is made through a mandatary, it is necessary that the revocation become known to the mandatary; and if it could not become known, the revocation has no value, and the promise holds just as if it had been made by the mandator himself. If the promisor dies before acceptance, a promise through a messenger or through a mandatary does not hold, for the mandate ceases. If the promisee dies before acceptance, the promise can still be accepted by the family and by the heirs, if the promisor intended these persons also per se and principally; otherwise, however, the promise remains altogether invalid. Cf. 991, 1002.

How does a promise oblige? A simple and gratuitous promise, speaking per se, obliges only under venial sin. It is proved: Because the obligation of a simple promise arises only from the virtue of fidelity, which per se obliges only under venial sin. Hence by the common judgment of men, violations of simple promises are customarily esteemed little. L. 837.

Speaking per se; for by accident even a gratuitous promise could oblige under mortal sin, as would happen: 1. When the promisee, because of the promise not fulfilled, would incur grave damage. 2. When the promisor would confirm the promise by a promissory oath; for thus he would at the same time be obligated from the virtue of religion. 3. When the promisor would confirm his promise by a handwritten document, so that the promisee could act civilly; for thus he would at the same time be obligated from the virtue of justice. Therefore someone can oblige himself from justice, and then he is gravely obligated in grave matter. "It does not appear," says Lugo d. 23. n. 91, "why you could not gratuitously and without any preceding debt wish to oblige yourself from justice to another to give or do something afterward in his favor. For just as you can gratuitously donate to him a house, and therefore transfer into him some real right in the house, which is the object of proper justice, why could you not also gratuitously transfer into him a right, not in the thing, but to the thing, and constitute yourself his debtor from a debt of justice? Indeed, all that which can be given for a price can also be given gratis, and just as you can sell a house for a price, so you can also donate it gratis; and thus in each case equally you give a proper right of justice in the house. Therefore, just as, with a price accepted, you can oblige yourself from justice to doing or giving something afterward, from which obligation you give a right from proper justice against yourself, so you will be able to give this very right gratis, and constitute yourself debtor from justice, just as if you had received a price for this obligation." "And here Sanchez, Sporer, and others commonly with Tournely note that to constitute grave matter in a promise, matter four times greater than in mortal theft is required, because the promisor acts concerning his own, but the thief concerning another's." L. 720; S. Th. 2. 2. q. 88. a. 3 ad 1.

L. Si pollicitus ff. de Pollicitat.; Gousset 782.

Is a right to the thing given through a promise? If by a promise someone obliges himself from justice, although a right in the thing is not given, nevertheless a right to the thing is given. For justice obliges to not harming another's right; therefore if at least a right to the thing is not transferred to the other, that promise no longer obliges from justice. But if by a promise someone obliges himself only from fidelity, no right to the thing is given to the other in any way... "For fidelity does not oblige to that which I owe to another, but to that which I owe to myself." Lugo l. c. n. 14. One failing faith injures no right of the promisee, because he has bound not the thing, but merely his own fidelity; hence he is not unjust, but lying and unfaithful.

Does an onerous promise, once the condition has been fulfilled, oblige under mortal sin? R. Affirmatively, per se. It is proved: Because a promise under an onerous condition, once the condition has been fulfilled, obliges from justice; but the obligation of justice per se, and from its genus, is grave. Hence, when the condition is gravely onerous and the promisor would subtract much from the reward, he would sin mortally; but when the condition is only lightly onerous and the promised reward is great, the promisor would sin only venially, even if he subtracted more, because as to the excess he seems to have obligated himself only from fidelity. C. B. 780, 782.

What about promises as they are generally customarily made? - Simple promises, as they are commonly made, do not urge even from fidelity, because commonly there is not in the mind of the promisor an intention of obliging his faith; therefore they enunciate a mere proposal. - Gousset 781, 783.

Whether, or how far, does a promise oblige if before execution the promisee or the promisor dies? R. To the first: It obliges in no way if the promise was made principally in favor of the promisee; because, with him dead, the end intended in the promise ceases. But otherwise if the promise was made chiefly in view of the family of the promisee, or of his heirs.

R. To the second: When the promisor has died, if the promise was to be fulfilled from justice, furnished with the due conditions, it must be fulfilled by his heirs; because every real obligation must pass to the heirs in the same mode and by the same title by which the promisor was obligated. Therefore, under grave or under light obligation, from justice, the heirs will be bound just as the promisor, while he was living, was bound. This same thing seems to have to be said of a donation, if the donor, after the donation has been made, dies before delivery of the thing. Cf. 994. If the promise was to be fulfilled only from fidelity, then the heirs per se are freed from every obligation; since such a promise involves a personal obligation, which does not pass to the heirs. Per se; unless, namely, the contrary will of the promisor is established. C. A. 900-955.

How does the obligation of an accepted promise cease? - It ceases on account of the following causes: 1. On account of condonation by the promisee; for anyone can renounce his own right. - 2. On account of change of the object, namely if the thing promised meanwhile became impossible, illicit by laws, or harmful or useless to the promisee, for whose utility and advantage it was made. C. A. 936. - 3. On account of a supervening change of state of the promisor or of the promisee, so that the promisor would not have promised if he had foreseen this change; as, for example, if someone promised one hundred florins to a poor person, and meanwhile he himself falls into poverty, and needs them for sustaining himself or his family honorably; or, if someone promised marriage to a girl who afterward becomes poor, very deformed, or is corrupted by another. - 4.

On account of ingratitude of the promisee; for this not only takes away the obligation of the promise, but also, if it is grave, makes a donation revocable, as is had in C. ult. de Donat. 5. Through compensation, namely when two persons promised something to each other, and one does not wish to stand by the promises; for, as is said in R. 75 of Law in the Sixth, In vain does someone ask faith to be kept to himself by him to whom he refuses to keep the faith furnished by himself. 6. On account of defect of the condition, or of the principal cause of the promise itself; as if someone promised something to another on account of poverty, whom afterward he finds not to be poor. For a promise is always considered made under such tacit conditions. Struggl 23; L. 720; S. Th. 2. 2. q. 110. a. 3 ad 5; Gousset 784.

What about promise from civil law? Promise is admitted in Roman Law, Dig. 1. 50. t. 12; likewise C. A. 861 ff. And it is also admitted in C. B. For in a. 780, a promise of some prestation in a contract is admitted, which must be established in writing; in a. 518, a promise of donation is admitted, which must also be established by a legitimate act; in a. 610, a promise of loan for consumption is had; in a. 656, a promise of salary for negotiation of marriage, which promise nevertheless gives birth to no obligation; however, what was paid on that account cannot be sought back. In a. 657 ff., there is question of public promise of some reward, which induces the obligation of payment. And promise is had several other times in the same Code, especially promise of a prestation to be paid to the bearer, concerning which there is question in a. 693 ff. From C. I. and C. G. nothing special is had concerning promise. From C. G. 893, it is drawn that no civil action is given from a simple promise. From C. I. 710, promise does not seem to be excluded from the various modes by which one's own rights can be transferred to others. The same must be said of C. H. 1089, 1254. But specifically there is question in C. G. 1589, 1590 concerning a promise of sale, and it is not distinguished from sale itself. But cf. here n. 1129. There is also question of it in C. H. 1451, and those contracting have the right to reclaim execution of the contract. In C. I. 53, 54, there is specific question of a reciprocal promise of marriage, which produces no legal obligation. Nevertheless if it was made by public act or private writing, or if publications were made by a civil magistrate, the one promising, who without just motive refuses to execute the promise, is bound to compensate expenses made by the other party in view of the promised marriage.

The same is prescribed in C. H. 43, 44. Likewise there is question in C. I. 1129; C. G. 1120; C. A. 881 concerning promise of the act of a third person; for example, that Titius will give surety for you. A promise of this kind gives a right to obtaining indemnity from him who obligated himself, or promised the ratification of the third party, if that one refuses to fulfill the obligation. Besides, if he promised only that he would take care that the other give or do, if he took care of this in vain, he is bound to nothing further. The same can be drawn from C. H. 1254. Lugo d. 23. n. 114. C. H. 836; C. G. 1326.