Chapter I. On Promise

797. • A promise is a contract by which someone freely and spontaneously obliges himself to furnish or omit something gratuitously in favor of another. The conditions required for the obligation of a promise are: 1. That there be present a will of obliging oneself, at least virtual and implicit, which anyone is judged to have who seriously wishes to promise, even if he does not advert to the obligation.

2. That the consent of the same promisor be fully free and spontaneous, and therefore that all error and fraud concerning the substance and final cause, and all coercion or unjust fear, be absent.

3. That the promise itself be outwardly manifested and accepted, since every pact must consist of the mutual consent of two or more persons concerning the same object; and from another side no one is judged to wish to oblige himself toward someone unless that person accepts.

798. Questions. - It is asked, 1. What and how great is the obligation of a promise once accepted?

I reply. It is controverted among Theologians. A threefold probable sentence is given, according to St. Lig., n. 720 ¹.

¹ Certainly this distinction of three diverse sentences is seen in St. Alphonsus (book 3, n. 720), just as also among the Salmanticenses (tract. 14, ch. 4, nn. 78-83), from whom the Holy Doctor took it. Nevertheless, among these the three sentences are proposed in another order. For they place first the one which the Author has in second place; second, the one which the Author relates last; but third, the one which the Author exhibits first.

Moreover, the Salmanticenses all but destroy this their own construction. For the first sentence (the second according to the Author) they propose thus (l.c., n. 79): The first sentence says that it is a mortal sin not to fulfill an accepted promise, and that the promisor is obliged from justice, even if no other damage comes to the promisee. But then, where they discuss the second (the third according to the Author), they add (l.c., n. 81) that very many cited for that sentence rather stand for this one. Thus they say: "And from the authors of the first sentence several in reality adhere to that one (that is, the second), since they reduce that same grave obligation in a promise to the intention of the promisor, and we ourselves, many times in this Course when treating this matter incidentally, have conformed ourselves to this most probable opinion." But if the matter stands thus, why therefore do the Salmanticenses allege those authors for that first sentence, and why did they not rather cite them for the second? Add further, that others alleged by them for that first sentence dispute concerning promise insofar as it also has place in an onerous contract, as, e.g., Sylvester (v. Pactum, q. 4), Soto (De Iust. et Iur., book 7, q. 2, art. 1, ad 1), St. Antoninus (part 2, title 10, ch. 1, sect. 4), and Covarruvias (In C. Quamvis pactum, part 2, sect. 4, n. 15), which last two allegations St. Alphonsus adopted, just as also the others which he has (l.c.). But indeed, since in a true onerous contract the obligation of justice necessarily intervenes, while the Salmanticenses are not disputing concerning promises proper to an onerous contract, now these authors also are cited beside the point. And so that first sentence, as it is exhibited by the Salmanticenses, appears almost as a fiction devised by them.

But again, when they come to the third (it is the first according to the Author), they describe it thus (l.c., n. 82): "The third sentence, which we now embrace, ... asserts that, speaking of itself, a simple and gratuitous promise obliges only under venial sin." Nevertheless behold (l.c., n. 83), they add: "Nor do the things which the second sentence adduces for its part stand in the way; for we do not deny that anyone can oblige himself from justice, no debt preceding, just as he can gratuitously go surety for another, because suretyship in becoming is gratuitous, and once made obliges to payment from justice." Therefore here they confess that a promisor can oblige himself from justice, which of its kind imports a grave obligation, and whose violation of its kind is a grave sin. Therefore finally the Salmanticenses fall back into the second sentence (the third according to the Author), which is thus described by them (l.c., n. 80): "The second sentence says that it depends on the intention of the promisor whether an accepted promise in grave matter obliges gravely or not; for if the promisor wished to oblige himself from justice and gravely, he will remain bound by this obligation; if only from honesty and fidelity, as frequently happens, he will be bound only lightly; and thus it asserts that one must judge whenever the contrary is not established."

Therefore it will finally be permitted to conclude that both the first (the second according to the Author) and the third (the first according to the Author) sentence of the Salmanticenses, from their own confession, fall back into their second (the third according to the Author); whence it follows that this distinction of three diverse sentences is a certain fiction, which its own fabricators destroy with their own hands.

That seemed difficult to the Salmanticenses (l.c., n. 83), that someone would wish to promise nakedly, nothing else added, and that he would wish to oblige himself further than from fidelity. But this did not seem likewise difficult to Lugo, who explains the matter thus (disp. 23, n. 91): "It does not appear why you cannot gratuitously and without any preceding debt will to oblige yourself from justice toward another to give or do something afterwards in his favor. For just as you can gratuitously give him a house, and therefore transfer to him some real right in your house, which is the object of proper justice, why will you not be able to transfer to him gratuitously a right, not in a thing but to a thing, and constitute yourself his debtor from a debt of justice? The whole question is: what can be given for a price can also be given gratuitously; and just as you can sell a house for a price, so also you can give it gratuitously, and so in each case you equally give a proper right of justice in the house. Therefore, just as after a price has been accepted you can oblige yourself from justice to do or give something afterwards, from which obligation you give a right from proper justice against yourself, so you will be able to give this very right gratuitously and constitute yourself a debtor from justice, as if you had accepted a price for this obligation."

But the same Lugo had proposed the distinction between a promise which obliges from justice and one which obliges from mere fidelity in this way (l.c., n. 14): "I reply that there is a great difference as regards this (namely, the force of a promise according to the diverse intention of the promisor) between justice and fidelity. For justice obliges only to not injuring another's right, or to not usurping that which is another's without his consent. But when there was not a will in the promisor of giving a right to another, such a right was not transferred, because our thing cannot be transferred without our consent; whence justice cannot oblige one to preserve another's right which in reality does not exist, because I owe him nothing when the promise was merely gratuitous and without other prejudice to the promisee. But fidelity, as it is commonly said, does not oblige me to that which I owe to another, but to that which I owe to myself. For it is usually said that God, who is obliged not from justice but from fidelity, does not owe anything to another from His promise, but to Himself; because that obligation does not arise from a right which the promisee has and which the promisor must preserve uninjured, but from the obligation which he himself has of preserving fidelity in promises. For just as the obligation from veracity to speak the truth does not arise from the right of neighbor, but from the debt which I have of not impeding human commerce for myself, and of not taking away faith from myself in assertions; so the obligation from fidelity does not arise from another's right, but from the debt by which I owe it to myself not to impede human commerce for myself, and the trust of others from my words." The same Lugo elsewhere expresses this more briefly in this way (l.c., n. 91): "We have shown that the difference between fidelity and justice is in this, that fidelity gives no right to the promisee, but obliges only from this, that each one must conform his deeds to his promises, insofar as it is necessary for human living together, not only that words agree with the mind, which pertains to veracity and is opposed to lying, ... but also that deeds agree with promises, which pertains to fidelity and is opposed to infidelity."

And indeed this doctrine must be called truly most common, as it was also permitted to gather above from the Salmanticenses. For if any disagreement appears among the Doctors, it is to be referred rather to the manner of speaking than to the substance of the matter. Namely, there are some who call a true promise, as they say, or one properly or strictly so called, only that promise which obliges from justice and therefore brings in an obligation grave of its kind; but they distinguish this from a promise not true, or less properly and broadly so called, which they also call an assertion, which binds the promisor from fidelity only. Thus, e.g., Laymann (book 3, tract. 4, ch. 12, n. 1): "Promise is twofold: one improperly so called, when the intention of the one saying that he will do something in favor of another man is only to oblige himself from the virtue of fidelity and veracity, according to which we ought to be constant, truthful, and faithful in words; the obligation of constancy and fidelity of this kind of its kind and speaking of itself is light, only under venial sin.... But the other is a promise properly so called, when the intention of the promisor is to oblige himself from justice, so that to the other accepting the promise there is acquired a right and action, as of demanding something truly owed, at least in the forum of conscience...; and such a promise of its kind obliges under mortal sin." You have nearly the same things in Lessius (book 2, ch. 18, nn. 55 and 58), Sanchez (De Matrim., book 1, disp. 5, n. 20), Palaus (De Matrim., disp. 1, part 2, n. 14), Trullench (book 7, ch. 16, dub. 6, nn. 2, 3), etc.

The first sentence holds that a promise, of itself, obliges only under venial sin, from mere fidelity. The reason is that a gratuitous contract obliges only by the bond of fidelity, and fidelity does not seem to oblige under mortal sin if other inconveniences are absent. - Salmant. - Saettler, and others.

The third sentence, more common and more probable, teaches that the obligation of a promise depends on the intention of the promisor. Hence if he intends to oblige himself from justice, he is obliged under mortal sin in grave matter; but if he intends only to oblige himself from fidelity, he is obliged only under light sin. - Lugo. - Billuart. - Sporer. - etc. Moreover, for grave matter in a promise they require a quantity four times greater than in mortal theft. - St. Lig.

And indeed these things concern promise properly taken. For often promises, such as are commonly made, oblige neither from justice nor from fidelity, because the promisor does not intend to bind his faith strictly, but merely to state his purpose.

799. • It is asked, 2. What is to be said in doubt whether someone wished to oblige himself under grave or under light sin, according to the patrons of the third sentence?

I reply. More probably one must stand for the least part, because in doubt a certain burden is not to be imposed, especially in a promise, which requires the greatest spontaneity. - St. Lig., n. 720. Besides, it is certain that a promise seriously made and accepted in a grave matter can, per accidens, oblige under grave sin from justice, as if there should intervene the reason of enormous damage coming to the neighbor from the promise not kept. - Scavini.

It is asked, 3. Whether someone can accept a promise through another?

I reply affirmatively. Someone can accept a promise through anyone chosen for this, or through a familiar, because he is judged morally to constitute one person with him. He can also accept a promise through another who manages his care, e.g. a father for a son under paternal power, a Religious for a monastery, a Prelate for his Church, a wife for her husband.

It is asked, 4. When does the force of an accepted promise cease?

I reply. 1. If the promisee spontaneously condones it or cedes from his right. - 2. If the thing promised becomes illicit or useless. - 3. If the promisee does not stand by his own promises. - 4. If the state of things or persons is so changed that the promise does not seem to comprehend that event. - 5. If the cause which moved one to promise does not subsist in any way ². - St. Lig., ibid.

² This last point, if taken universally, is not true. For a past cause, however false, generally speaking does no harm and is held as not added. See Voet, In Pand., book 35, title 1, n. 9.

800. • It is asked, 5. Whether, or to what extent, a promise obliges if before execution the promisee or the promisor dies?

I reply to the first by distinguishing. It obliges in no way if the promise was made principally for the sake of the promisee; because, when he has died, the end intended in the promise ceases. But it is otherwise if the promise was made chiefly with a view to the family of the promisee, or his heirs.

I reply to the second. When the promisor has died, a promise clothed with the due conditions must be fulfilled by his heirs; because every real obligation must pass to the heirs in the same way and by the same title by which the promisor was obliged. Therefore the heirs will be held under grave or under light sin, from justice or fidelity, just as the promisor, while he was living, was held. Nevertheless, they will be able to be freed from every obligation if, from the circumstances of the thing or from signs, it is manifest that the promisor wished to oblige only himself personally. - Lugo. - Reuter, etc.

Case. Sylvinus sometimes says repeatedly to his maidservant Perpetua that he will pay to her, beyond the annual wage, a hundred scuta, or that in his testament soon to be drawn up he will leave the same sum of money as a legacy. But behold! Sylvinus is seized by sudden death before he could complete his purpose. But Perpetua without delay hastens secretly to take the money promised to her. Was this rightly done? I reply: By no means. For a promise does not give a right in the thing, nor therefore any faculty of occupying the promised thing by one's own authority ³. - See above, On Justice, n. 521. - Moreover, commonly these promises are nothing except a mere signification of purpose, and only state the will of giving something. - Gousset. - See Cases, n. 797 and following.

³ Nevertheless, a promise, if it is made from justice, gives the promisee a right to the thing (De Lugo, disp. 23, n. 100). See besides the things which the Author has below, n. 836. But in the case, this too must be observed, that the promise of Sylvinus is judged remunerative; and remunerative donations (which the Author also notes below, n. 828) display rather a certain payment of a debt than a gratuitous cession.