ARTICLE I: On Promise

1061. DEFINITION. Promise is a liberal, deliberate, and spontaneous giving of faith, externally made and accepted, concerning a possible and honest thing.

It is said: liberal, and thus it differs from an onerous contract; deliberate, that is, with full advertence; and spontaneous, that is, immune from error, deceit, and fear; a giving of faith, and thus it is distinguished both from donation, in which the thing itself is immediately handed over, and from a mere purpose, which is the simple will of doing something and imposes no obligation; externally made, that is, such that a man can know it; accepted, otherwise consent would not be mutual. But tacit acceptance suffices; indeed, someone can accept for another whose care he manages. Thus a father accepts for children, a religious for a monastery, a prelate for a church, a husband for a wife, etc.; concerning a possible and honest thing; because there is no obligation of impossibilities, and "faith ought not to be observed in evil promises" (Reg. 69, in 6). But if the promise is prodigal, the thing promised must be reduced to equity, according to common estimation; and if the thing is indivisible, nothing is owed (III, 720, 735).

The object of a promise can be either an action to be done by the promisor, a personal promise, or a thing to be furnished for the utility of the promisee, a real promise.

If a promise is made under a certain formula of words, for example one asking: will you give me the book? and the other responding: I will give it, it is called STIPULATION. He who promises is called the promising one or promisor; but he to whom it is promised is called the promisee.

1062. PRINCIPLE. The obligation of a promise depends on the will of the promisor. If he wished to obligate himself only from fidelity, which ordinarily happens, he is held only under light sin, even in grave matter. If he intended to bind himself from justice, the obligation will be grave or light according to the quantity of the matter. But for constituting grave matter in a promise from justice, there is required a quantity four times greater than in grave theft, because the promisor disposes of his own. - In doubt concerning the intention of the promisor, one must stand for the least part.

Points to be noted. 1. An obligation from fidelity says only a moral debt imposed on the promisor from honesty; an obligation from justice superadds to this debt a right to the thing (cf. n. 839), which is acquired by the promisee (Lugo, l. c., n. 12).

2. A public promise, expressed by a public instrument, is always considered elicited from a motive of justice; for that, in the likeness of law, binds successors. According to some authors, the same must be said if the promise is firmed by oath. Cf. Delama, n. 178; Muller, II, § 110; German Code, 311, 313, 518.

3. Any promise, by accident, obliges from justice, namely if a neighbor would suffer damage from the promise not being observed; for example if you promised him a loan for consumption, and he, relying on your promise, did not provide for himself from elsewhere.

4. The promisee cannot secretly snatch the thing promised, because a promise does not give a right in the thing (cf. n. 917). Except if it is a question of a remuneratory promise (cf. Gopfert, II, n. 99). Yet after the fact, he who in good faith has occupied a thing promised to himself does not seem to be held to restitution. The reason is that it is not established that he retains another's thing with the owner reasonably unwilling. Cf. Aertnys, l. III, n. 404; Lessius, l. c., c. 17, n. 44.

5. The obligation of an accepted promise ceases "if afterwards the promised thing is rendered impossible, or very harmful, or illicit, or useless; and generally speaking, as often as there supervenes a notable change of things, which, if it had been foreseen, the promise would not have been made; because a promise made is always presumed under such a tacit condition" (III, 720). Cf. the things said n. 1060.

IT IS ASKED. Whether a promise obliges if before execution the promisee or the promisor DIES?

1. If the PROMISEE dies, it must be distinguished thus: the promise was made either principally in his favor, or principally or at least equally in favor of his family or heirs. If the former, the obligation of the promise vanishes, because the end intended in the promise ceases. If the latter, the obligation presses toward the family or heirs of the deceased (cf. n. 1068).

2. If the PROMISOR dies, the heirs are held to fulfill his real promise, whether toward the promisee or toward the latter's heirs, in the same mode and by the same title by which the deceased was held. But otherwise if it is established that the promisor wished to obligate only himself personally (Lugo, l. c., n. 98). The Codes also are to be consulted here: for example Austrian Code, 955.

Note. But if the promise was made through a mandatary, the promise will have force after the death of the promisor, so that the heirs of the deceased are obligated, provided the mandatary could not yet know of the death of the deceased (cf. Lehmkuhl, I, n. 1287).

With respect to the promise which an heir ab intestato made to a dying man, see n. 1083, fin.