§ 1. On Gratuitous Promise

²

² In German: promise of a gift (Schenkungsversprechen).

267. Notion. A gratuitous promise is a contract by which someone liberally and spontaneously obliges himself to furnish or omit something for another; or more briefly: A promise is the free and spontaneous giving and acceptance of faith concerning a lawful, possible, and useful thing. Nevertheless, an onerous promise is also given,³ which can intervene in other contracts. We do not treat it here. He who promises something is called the promisor; but he to whom something is promised is wont to be called the promisee. The following are required for a gratuitous promise:

1. The intention of truly obliging oneself. Hence a promise differs from a purpose, by which someone indeed intends to do something but does not wish to undergo a true obligation; it also differs from a donation, which is a giving of a thing, while a promise is only a giving of faith.

2. A spontaneous and free will, i.e., free from every error, force, or fear. In a gratuitous promise, even slight fear is excluded, because otherwise it is no longer altogether gratuitous and spontaneous. It is otherwise in an onerous promise.

3. Manifestation and acceptance of the promise. For a promise is a contract. But no contract between men is perfected unless the will of each contracting party is manifested and accepted by each. Authors dispute whether acceptance must always be express. Sometimes, from the circumstances, even the silence of the one to whom the promise is made is sufficient acceptance, since some benefit is conferred upon him from the gratuitous and liberal promise; and then the adage holds: "He who is silent seems to consent."⁴

³ It is sometimes called an offer of reward (Auslobung; cf. German Civil Code § 657) and is had if someone promises some gift to one who produces some determinate result.

⁴ Cf. Billuart, De contract. diss. 2, a. 1.

268. Obligation of a promise. Concina⁵ notes excellently concerning this matter, saying: "The discussion is not about an onerous promise, inducing an obligation on each side; nor about a civil promise, producing, besides the obligation of fidelity, a legal debt. A civil promise (inducing a legal debt) is said to be that which is made before a notary and witnesses, or by means of a signed document, by force of which the promisor or donor can be compelled in the external forum to fulfill what was promised. All agree that these two promises give rise to a grave obligation from justice. The dispute is only about a simple private promise made in words and accepted."

Violation of a legitimate and accepted gratuitous promise is a sin opposed to truthfulness and fidelity. Thus all. If this violation accidentally causes unjust damage to the promisee, it is a sin grave in its genus against justice. Thus also all. E.g., one who culpably does not keep a promised secret and thereby causes grave damage to another sins mortally against justice and is bound to restitution. - But if someone does not keep a promise made without sufficient reason, yet without causing notable damage to the promisee, is this a mortal sin in its genus? There are three opinions.⁶

The first contends that one who does not fulfill an accepted promise sins mortally, and indeed against commutative justice. The reason is that the virtue of fidelity is a potential part of justice and, as the foundation of all obligations, is especially necessary to the republic and to human society. St. Antoninus,⁷ Silvester Prierias,⁸ Dominic Soto,⁹ and Billuart¹⁰ defend this opinion. But if it is asked according to this opinion what matter is grave in the violation of a promise, these authors respond that matter four times greater than in theft is required before a grave obligation of restitution arises.

The second opinion teaches that the gravity of the obligation depends upon the intention of the promisor. For a promise is a certain private law which the promisor freely imposes upon himself. Therefore, he can bind himself gravely or lightly, from justice or from fidelity. Thus Lugo¹¹ (who says that this opinion altogether pleases him), Molina,¹² and others. But this opinion does not reach the point of the difficulty. Certainly a liberal promise does not oblige beyond the explicit intention of the promisor, and consequently the promisor can oblige himself either under grave sin or under light sin, just as the obligation of a vow, which is a promise made to God, can be light or grave according to the particular intention of the one vowing. Therefore the knot of the difficulty is how great the obligation of a promise is from its own nature, abstraction being made from any particular intention of the promisor. A particular intention of gravely obliging oneself is considered to be in the promisor: 1. when he confirms the promise by an oath; 2. when he promises by stipulation, e.g., I promise 1,000 francs to him who discovers such a criminal; 3. when he promises before a notary, or before witnesses explicitly assumed for this, or by a written document; 4. when he says: I oblige myself as much as I can, or something similar.

The third opinion defends that a simple accepted gratuitous promise obliges of itself only under light sin. The reason is that the violation of a promise of this kind is as it were a simple lie. But a simple lie is only a venial sin in its genus, as was proved above, n. 170. Therefore the same is true of the violation of an altogether gratuitous promise. There is added the common estimation of men, who do not think that they have committed a mortal sin when they have broken a simple and wholly liberal promise given, yet without damage to their neighbor. St. Thomas seems to favor this opinion, saying: "According to moral rectitude, from every promise a man is obliged to a man."¹³ Thus also teach Cajetan,¹⁴ Bañez¹⁵ (but nevertheless not so clearly), Peter de Ledesma,¹⁶ John of St. Thomas,¹⁷ and many others. Since every question in which there is question of mortal sin is perilously determined unless the truth is expressly had, and since a sin is not to be asserted as mortal unless it is certainly established, hence this third opinion seems to us to be preferred in practice. Nevertheless, a frivolous violation of a promise made is truly detestable and not rarely causes grave enmities.

⁵ De iust. et iure l. 3, diss. 4, c. 20, n. 6ff.

⁶ Cf. St. Alphonsus, Theol. mor. l. 3, n. 720.

⁷ S. theol. P. 2, tit. 10, c. 1, § 4.

⁸ Summa, s.v. "Pactum," q. 4.

⁹ De iure et iust. l. 7, q. 2, a. 1 ad 1.

¹⁰ L.c., § 2.

¹¹ De iust. et iure disp. 23, n. 90.

¹² De iure disp. 262, n. 11.

¹³ S. theol. 2, 2, q. 88, a. 3 ad 1.

¹⁴ Comm. in 2, 2, q. 113, a. 1, dub. 4.

¹⁵ Comm. in 2, 2, q. 62, disp. 5, dub. 2.

¹⁶ De matrim. q. 45, a. 5, dub. 2.

¹⁷ 1, 2, q. 88, disp. 29, a. 9.

269. Cessation of the obligation. St. Thomas enumerates two reasons on account of which a promise made ceases: 1. when the thing promised is illicit; 2. when the thing promised, or the circumstances of the thing or person, are notably changed.

"Nevertheless, [the promisor] can be excused for two reasons: in one way, if he promised that which is manifestly illicit, because he sinned in promising but does well in changing his purpose; in another way, if the conditions of persons and affairs have changed. For, as Seneca¹⁸ says, in order that a man be bound to do what he promised, it is required that all things remain unchanged; otherwise he was neither mendacious in promising, because he promised what he had in mind, with the due conditions understood; nor is he unfaithful in not fulfilling what he promised, because the same conditions do not exist. Hence even the Apostle did not lie, who did not go to Corinth, whither he had promised that he would go, as is said in 2 Cor. c. 1, and this on account of the impediments which supervened."¹⁹

Modern authors, besides these two reasons, add two others, namely: a) if the promisee freely remits; b) if, a mutual promise having been made, the other did not stand by what was promised. For faith given is also broken with impunity toward one who has broken faith.

You will ask: What are the obligations if the promisor or the promisee dies before the promise has been completed in execution?

a) If the promisee dies and the promise was made principally for his personal favor, then the obligation of the promise also dies; it is otherwise if the promise was made principally, or at least equally principally, in favor of the promisee's family and his heirs. For then the obligation remains.

b) If the promisor dies, a personal promise, i.e., concerning a personal action to be furnished, ceases; but a real promise, i.e., concerning a thing to be given, passes to the heirs. - In practice, however, it is safer to follow the statutes of the civil code.

Note. Since a gratuitous promise does not cause a right in the thing, it is not lawful to employ hidden compensation in a case in which the promisor did not stand by what was promised without sufficient reason. If, however, the promise was from justice or was remuneratory, one who in good faith occupied the thing promised can retain it unless a judge establishes the contrary. E.g., a niece serves, without an explicit contract, a sick uncle who explicitly promised that he would give a gift of 1,000 francs. When through sudden death the uncle cannot stand by this promise, the niece can be left in good faith if she took the promised 1,000 francs.²⁰

¹⁸ De benef. l. 4, c. 34ff.

¹⁹ S. theol. 2, 2, q. 110, a. 3 ad 5.

²⁰ Thus Göpfert, Moraltheol. II, n. 99; Marc, Instit. mor. I, n. 1062; Aertnys, Theol. mor. l. 3, n. 404.