Three Degrees of Promising

I. INTRODUCTION A young married man borrowed a substantial sum of money. He was already making mortgage payments on his house. After a time he found himself unable to make both the installment payments on the loan and the mortgage payments on the house. He concluded that he must either default on the loan and file for bankruptcy or sell his house and rent a small apartment. He sought advice.1 One friend advised: "You have a legal obligation to repay the amount you borrowed, but your creditor, by agreeing to make you an unsecured loan, voluntarily accepted a risk that you might be unable to repay. That was a business decision your creditor made. The interest rate it charges for its loans assumes a certain rate of default among its debtors. You are legally entitled to the protection of the law of bankruptcy, which will allow you to keep your house. You should do so without any sense of shame."2 Another friend advised: "Keep your agreement and repay the loan."3 "Even if it costs me my home?" asked the young man.4 "I am not talking about your home," the friend replied, "I am talking about your agreement, and I think your wife would rather have a husband who would keep his word, meet his obligations, keep his pledges or his covenants, and have to rent a home than have a home with a husband who will not keep his covenants and his pledges."5 The two friends approached the meaning of the young man's promise in very different ways. The first viewed it in legal and economic terms, casting it in terms of business risk and legal options. The second saw the promise in moral, even spiritual, terms, associating it with the young man's integrity and, using the words "covenant" and "pledge," linking the promise with the expectations the young man's wife might have of his character. The advice the young man received suggests that widely varying ideas about the meaning and importance of promises are current in our culture. This paper does not point to a simple or authoritative resolution of the young man's dilemma, but I hope it might be useful to those facing such questions. When lawyers think of promises, they usually think of contracts. Scholars debate the precise importance of promises to contracts, but promises are clearly at the heart of mainstream thinking about contracts. The modern law of contracts centers its attention on commercial transactions, although it is also prepared to deal with noncommercial relationships, such as charitable subscriptions and undertakings between family members. Such noncommercial transactions can influence the formation of contract law.6 But the content and structure of the law is devised primarily to govern dealings in the commercial world. If promises are central to the world of commercial contracts, is it also fair to say that contracts are central to the world of promises? One might be tempted to think so. There are, however, settings in which people make promises that the law considers important but that contract law fails to address carefully or at all. Consider making a promise under oath. When the President-elect stands before the Chief Justice of the United States on inauguration day or when an anonymous person from small-town America is sworn in as a witness in a trial, each makes a promise accompanied by some degree of ritual intended to impress upon all participants in the occasion that a serious obligation has been undertaken. Contracts casebooks and treatises do not address these promises, although books on government and the law of evidence may do so. Consider marriage. When a bride and groom approach the altar in a traditional religious ceremony or stand before a justice of the peace in a purely secular proceeding at town hall, part of what they do is make promises to each other. Whatever else their promises might mean, they have an important legal effect. Those promises, however, are not the subject of contract law. Although formal contracts may be made in connection with the formation or dissolution of a marriage, the marriage vows themselves are more accurately described as creating an important legal status, a subject usually classified as part of family law. …