the value of a promise

The Value of a PromiseAuthor(s): Dennis M. PattersonSource: Law and Philosophy, Vol. 11, No. 4 (1992), pp. 385-402Published by: SpringerStable URL: http://www.jstor.org/stable/3504858 .

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DENNIS M. PATTERSON

THE VALUE OF A PROMISE

ABSTRACT. The question "What makes a promise binding?" has received much attention both from philosophers and lawyers. One argument is that promises are

binding because the act of making a promise creates expectations in the

promisee, which expectations it would be morally wrong to disappoint. Another

argument is grounded in the effects engendered by the making of a promise, specifically actions taken in reliance upon the promise. These two positions, the so-called expectation and reliance theories, have traditionally been thought to be incommensurable. In a recent article, 'Promises and Practices', Thomas Scanlon advances a theory of promising developed out of both of these positions. This article argues that Scanlon's argument fails because it cannot avoid the incom-

mensurability of the expectation and reliance principles.

INTRODUCTION

What do we owe to others when we make a promise? In the law, the answer to this question turns largely on one's theoretical commitments with respect to damages. Those who believe that the essence of contract lies in giving the promisee the value of what she expected at the time the promise was made see the non-breaching party entitled to an amount that will put her in the position she would have been in had the contract been performed.1 Those who believe the point of

* Earlier versions of this paper were read at the Eastern and Central Division meetings of the American Philosophical Association, Department of Philosophy, University of Western Ontario, and the North American Society for Social Philosophy. My sincere thanks to Jefferson White, Richard Bronaugh, Joseph Raz, and Richard Hull for comments and discussion of drafts of this article. I also wish to thank Tim Scanlon for being the commentator on an earlier version of this paper, read at the Central Division meeting of the A.P.A. in April of 1991, and for a lengthy correspondence over his account of the moral basis of promising.

See Charles Fried, Contract as Promise (Cambridge: Harvard University Press, 1981).

Law and Philosophy 11: 385-402, 1992. ? 1992 Kluwer Academic Publishers. Printed in the Netherlands.



Dennis M. Patterson

contract law to be compensation for losses incurred in reliance on

representations in the form of a promise view promise-enforcement as

secondary to compensation for reliance losses.2 From this perspective, the mistake of the expectation theorists is that by making the execu-

tory promise the paradigm of agreement, they have obscured the

importance of other values in contract doctrine. These other values,

principally reliance and restitution, require a different model of contract, one sensitive to what the legal realists referred to as the "real life" contexts of agreement making.3

In a recent article discussing the moral basis of promising,4 Thomas Scanlon argues that reliance and expectation are two aspects of the same normative coin, one he labels "The value of assurance". While

surely of interest to philosophers interested in the theory of promising, Scanlon's argument has wide implications for lawyers. If the central claims in Scanlon's argument can be sustained, then the long-standing debate between expectation and reliance-based accounts of the obligation to keep a promise can be ended.

Part I of this article surveys Scanlon's argument in favor of the value of assurance. In Part II, I argue that Scanlon's argument in favor of the single value of assurance fails because he equivocates on the

meaning of "reliance". In Part III, I argue that the value of assurance cannot be one value but is at least two. The nerve of the argument is that expectation and reliance are incommensurable values which cannot be reconciled.

I. PROMISES AND PRACTICES

When a promise is broken, what is the nature of the wrong that is

2 See Patrick S. Atiyah, Promises, Morals, and Law (Oxford: Clarendon Press, 1981). 3 On this point, see G. Gilmore, The Death of Contract (Columbus: Ohio Uni- versity Press, 1974) and Karl Llewellyn, 'What Price Contract?: An Essay in

Perspective', Yale LawJournal 40 (1931): 704-51. 4 Thomas Scanlon, 'Promises and Practices', Philosophy & Public Affairs, 19 (1990): 199-226 [hereafter cited by page number].

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committed? Many moral philosophers from Hume to Anscombe believe that the answer begins with certain features of social practice (institutions). People conduct their interactions in ways that demon- strate the mutual recognition of interpersonal norms and expectations. Given the social fact that persons expect promises not to be broken, and that the keeping of promises is in everyone's best interests, the

breaking of a promise is deemed a reprehensible act, rightfully subject to opprobrium.

Rawls takes a different approach to the moral basis for the obligation to keep a promise. On Rawls's account, one who benefits from a

practice of promising must reciprocate with other participants in the

practice; otherwise one is free-riding. For Rawls, the principle of fairness requires one who derives a benefit from a practice to reci-

procate in the same way with others.5 By helping oneself to the good of stable agreements, one who makes a promise must provide a like

good to others. In 'Promises and Practices',6 Thomas Scanlon argues that the insti-

tutional and Rawlsian accounts of promissory obligation misunder- stand the relationship between practices of promising and the obligation to keep one's promises. Scanlon argues that there is no conceptual relationship whatsoever between any particular practice of promising and the obligation to keep one's promises. For Scanlon, the obligation to keep one's promises can be explained without reference to any actual practice of promising. The obligation to keep one's promises is a

duty specifiable independently of one's actual commitments to other

persons. Scanlon's is a subtle and multifaceted argument. Its complexity

notwithstanding, the argument is based upon the straightforward claim that promises are morally binding because in making a promise, we engender expectations on the part of the party to whom the

promise is made (the promisee). These expectations frequently result in the promisee taking action in reliance upon the promise. From this

5 John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press,

1971): pp. 344-50. 6 Cited above in footnote 4.

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fact, together with a moral principle the validity of which is not

dependent upon any actual social practice promising, Scanlon develops his account of the moral basis of promising.

A large part of the problem with the Institutional analysis of the moral basis of promising is a failure to see that "the wrong of breaking a promise and the wrong of making a lying promise are instances of a more general family of moral wrongs which are concerned not with social practices but rather with what we owe to other people when we have led them to form expectations about our future conduct".7

Let us begin with the moral principle that lies at the heart of Scanlon's account. This he calls the principle of fidelity (Principle F):

If (1) A voluntarily and intentionally leads B to expect that A will do x (unless B consents to A's not doing X); (2) A knows that B wants to be assured of this;

(3) A acts with the aim of providing this assurance, and has

good reason to believe that he or she has done so;

(4) B knows that A has the beliefs and intentions just described;

(5) A intends for B to know this, and knows that B does know it; and

(6) Be knows that A has this knowledge and intent; then, in the absence of some special justification, A must do x unless B consents to x's not being done.8

The gravamen of the principle of fidelity is expectation.9 Stated

simply, the principle of fidelity mandates that where one has

knowingly and intentionally led another to expect that he will bring to

pass some state of affairs (x) (e.g., the promisor will perform a promised service for the promisee), the promisor is duty-bound to deliver

7 Scanlon, 200. 8 Scanlon, 208. 9 There will be a gradual shift in the account of Scanlon's position whereby expectation will turn into reliance upon an expectation. As I show at the end of the article, these two distinct ideas are conflated in Scanlon's argument.

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the promised performance. Were the promisor, without substantial

justification, not to perform as promised, the wrong (of failing to keep one's promise) would be a moral wrong.

Scanlon's insistence that the wrong of failing to keep one's promise is a moral wrong and not merely (although it surely is this as well) a

wrong as defined by the dictates of any particular practice of promising, is grounded in contractarian moral theory. Following Rawls, Scanlon argues that the fact that potential participants in any practice of promising "have reason to insist on such a duty of fidelity is in my view sufficient to establish it as a duty unless it would be reasonable for potential [participants] to reject such a principle".'? Because it draws its validity from a hypothetical model of moral knowledge and not from any actual practice of promising, Scanlon insists that the

principle of fidelity is not "conventional", at least as that word is understood by proponents of the Institutional analysis of promissory obligation."

There are various ways in which the expectations of others can

wrongfully (that is, morally wrongfully) be disappointed. One way is to promise something with the intention never to deliver on the

promise. This wrong Scanlon identifies as a violation of the principle against unjust manipulation (Principle M),12 the most well-known

example of which is Kant's lying promise.13 Scanlon is concerned to go beyond the relatively easy case of the

)0 Scanlon, 209. As stated in the Introduction, I will not dispute the assumed validity of the contractarian approach to the question of the validity of moral principles. " Scanlon provides discussion of potential objection to his understanding of the relationship between the Principle of Fidelity and actual practices of promising. See Scanlon, 216-22. I do not here discuss this aspect of his position because it is not germane to my analysis of the shortcomings of his argument. 12 Principle M is described as follows:

Principle M: In the absence of special justification, it is not permissible for one person, A, in order to get another person, B, to do some act, x (which A wants to do and which B is morally free to do or not do but would otherwise not do) to lead B to expect that if he or she does x than A will do y (which B wants but believes that A will otherwise not do) when in fact A has no intention of doing y

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lying promise to explain a less objectionable but related instance of

misleading conduct. It is often the case that while we do not intend to mislead others, we act so as to create expectations which, when unful-

filled, cause frustration no less than if we had intended the result. The

duty requiring avoidance of the inadvertent creation of false expectations is expressed by the principle of due care (Principle D).'4

Where one either intentionally (Principle M) or negligently (Prin- ciple D) creates expectations which turn out to be false, the party creating those expectations is under a duty to see to it that those false

expectations do not result in any loss to the innocent party with those

expectations. This duty is reflected in the principle of loss prevention (Principle L).15

In the final analysis, Scanlon is able to bring together a number of different forms of wrongful conduct and, through the normative lens of the principle of fidelity, show them to be genetically related.

Leading others to believe that you will do something you have no intention of doing (whether the promisor intends to create the ex-

pectations (manipulation) or not (due care)), requires that all reliance losses be compensated (loss prevention). Where compensation proves inadequate, the promisor must deliver the promised performance (fidelity).

if B does x, and A can reasonably foresee that B will suffer significant loss if he or she does x and A does not do y.

Scanlon, 202-03. 13 Immanuel Kant, Groundwork of theMetaphysics of Morals, [Ak. 422]. '4 Principle D is described as follows:

Principle D: One must exercise due care not to lead others to form reasonable but false expectations about what one will do when there is reason to believe that

they would suffer significant loss as a result of relying on those expectations.

Scanlon, 204. 15

Principle L is described as follows:

Principle L: If one has intentionally or negligently led someone to expect that one will follow a certain course of action x, and one has reason to believe that the

person will suffer significant loss as a result of this expectation if one does not follow x, then one must take reasonable steps to prevent that loss.

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II. EXPECTATIONS AND PROMISES

Recall that the nerve of the principle of fidelity is expectation: the creation of expectations on the part of others carries with it a duty to see to it that those expectations are not disappointed. The reason for this is that expectations engender action: people rely on what they are told. The creation of expectations leads to action on the part of those to whom representations are made.

Of course there is no problem defending the principle of fidelity at the level of reliance upon representations. Principles M, D, and L

require that no loss or harm is to come to one who responds with action or reliance on expectations that turn out to be false. But Scanlon has a much larger explanatory claim to sustain. Not only does the principle of fidelity support an obligation to make good on representations that result in action, it supports an obligation to make good on representations where there has been no reliance whatsoever.16 Thus, Scanlon contends that the principle of fidelity explains both the

obligation to compensate for losses incurred as the result of reliance on false representations as well as cases where there have been representations - be they representations in the form of a promise or not - but no reliance. In short, Scanlon claims the principle of fidelity explains both the obligation to compensate for (reliance) losses as well as the obligation to keep one's (unrelied-upon) promises.

The problem case for Scanlon's explanation of the moral basis of

promising is the bilateral executory agreement. To use an example mentioned by Scanlon, if I promise to drive you to work in exchange for your mowing my lawn, and you accept my offer, we have a bilateral agreement. Each of us has promised something to the other.17 If after making this agreement with you I should change my mind and cancel our arrangement, none would disagree that I remain obligated to drive you to work despite the fact that you have in no way relied

Scanlon, 204. 16 Scanlon, 205. 17 In the law each promise is said to be "consideration": something of value (a promise) given in exchange for something else of value (a reciprocal promise).

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upon my promise to do so.18 What Scanlon must explain is why I remain obligated to fulfill my promise to you without your having in

any way relied upon the expectation I have knowingly and inten-

tionally created.19 Scanlon's resort to the principle of fidelity to explain the duty to

keep a wholly executory promise occurs as follows. There are three

aspects to the explanation. First, he points out that a principle re-

quiring only a warning prior to reliance (Principle D) "would be inferior to one requiring (at least some) intentionally created expectations to be fulfilled".20 And why would it be inferior? "First, and most

obviously, such a principle would provide no protection against mone-

tary or other concrete losses resulting from positive actions that one has undertaken, before being warned, on the basis of false expectations about what the other party is going to do."21

Notice that this explanation only requires that expenditures made in reliance on a promise zught to be compensated. This is fine as far as it goes. Unfortunately, it does not go far enough, for it does not

explain why the promise that gave rise to the expectation is binding: it

merely explains why the expenditures made in reliance on the promise must be compensated.

Scanlon offers a second reason in support of his explanation of the moral basis of promising. In making an agreement, say the lawn and ride agreement already mentioned, you might have foregone other

opportunities available to you at the time we made our deal. In relying upon my promise to drive you to work you agreed to mow my lawn. That same day, after we had reached our agreement but prior to my calling and saying "the deal is off', you receive an offer to mow someone else's lawn for a fee. Being pressed for time you decline the

18 For example, you have not gone out and purchased a lawn mower with which to mow my lawn. 19 Notice that in this executory contract example, nothing has occurred which

might come within the ambit of Principles M or D. Thus there is no loss to

compensate, thereby precluding any implication of Principle L. 20 Scanlon, 205. 21 Ibid.

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offer, stating that you have time to mow only one lawn per week and have already promised to mow mine. I then call canceling our

arrangement but by this time the other lawn mowing job has gone to someone else.

Notice that, just as before, my promise to drive you to work is

binding because something has been given up; in this instance an

opportunity has been passed up.22 However, in many instances this is not the case. People simply make deals that have little or no connection with other aspects of their lives. But this is beside the point, for the question involved here is conceptual not empirical. Scanlon has

yet to provide an explanation of why promises bind in the absence of something being lost orgiven up by the non-breaching party in reliance upon the

promise. Scanlon's last effort at providing an explanation is the following:

[A] person who is [merely] warned may have already passed up opportunities for action (and opportunities to look for such opportunities). Among these are opportunities for further bargaining and negotiation about the terms of agreement, which are foregone when the arrangement is made. If, as is very com- monly the case in situations like the car and lawn example, there is significant value in simply having a matter settled, then for the sake of this value one may be willing to accept terms that are less satisfactory than others one might have bargained for. In such situations, when we are dealing with mutual promises and their analogues, there can be an act of "reliance" at the moment at which the mutual expectations and intentions are formed: something has been given up for

22 I might point out that it is not necessary to enforce the promise in order to compensate for the lost opportunity. The value of the lost opportunity can simply be paid over in the event the promisor reneges. In this connection, it is interesting to note that under contract law the amount of the recovery would be limited to the value of the promise (the value of the lawn mowing job) not the money I could make driving someone else to work. So, if I agree with you to drive you to work in exchange for your mowing my lawn and you breach our agreement, my damages are limited to the cost of having someone else mow my lawn despite the fact that I might have passed up other opportunities (e.g., driving a millionaire to work) in reliance upon your promise. Under the law, the value of the promise (not what I could have gotten elsewhere from someone else) is the measure of damages.

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the sake of a value - the value of having the matter settled - that will prove illusory if one party simply warns the other before further reliance has occurred. I will refer to this value as the value of assurance.23

Why does Scanlon put the word "reliance" in quotes in this passage?'4 Can it be that not even he regards this as an adequate explanation of the moral basis of promising? To this point, he has insisted that the moral basis of promising lies in getting other people to act on the basis of representations in the form of promises. In the passage just quoted, he continues this line of analysis, bringing it to a problematic conclusion. What is wrong with the explanation?

Start with the question "Why is a promise binding when there has been no reliance on the promise?" Scanlon's answer is that there is

always reliance. In fact, Scanlon believes there is reliance as he says "at the moment at which the mutual expectations and intentions are formed".25 So a promise is relied upon the moment a bilateral agree-

23 Scanlon, 206. 24 This occurs nowhere else in his article. 25 Scanlon, 206. In their famous article arguing, in much the same vein as Professor Scanlon, that reliance is the true ground of legal obligation to keep one's promises, Lon Fuller and William Purdue were forced to make precisely the same sort of "verbal compromise" as Professor Scanlon. See Lon Fuller and William Purdue, 'The Reliance Interest in Contract Damages', Yale Law Journal 46 (1936-37): 52-96; 373-420. Professor Richard Bronaugh details the problem facing the reliance argument.

Fuller and Purdue suggest the following: "We might easily base the whole of contract on the fundamental premise that only those promises which have been relied upon will be enforced. As the chief exception to this principle we should have to list the bilateral business agreement. The rationale for this exception could be found in the fact that in such agreements reliance is extremely likely to occur and extremely difficult to prove." [Fuller and Purdue at 70] As a way of

bringing the bilateral business agreement into the fold of reliance, they suggest the idea of a judicially conferred "conclusive presumption" of reliance. [citing Fuller and Purdue at 70] But one should not fail to notice that the reason that reliance is so likely, but so hard to show in the business context, is the elusive nature of missed and foregone opportunities. This completes their central (but rather couched) argument.

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ment is reached. There can never be an agreement without reliance. To agree is to rely. This borders on definitional hocus-pocus.26

The very definition of a bilateral agreement is one where each party promises something to the other. To ground promissory obligation in the realization of the value of assurance (having a matter settled) requires the existence of binding promises first. Assurance is the value realized from the existence of the contract. One might say that Scanlon's mistake is his failure to recognize that assurance is not the

glue of the bargain but a consequence of the bond.

Perhaps we are not giving the principle of fidelity its due. Consider the case of Harold.27 Years ago, Harold did something of which he is now somewhat ashamed and would best like to forget. When you arrive at the university to be a guest professor for a term, you en- counter your old acquaintance, Harold. Harold asks that given the fact that "the matter" is now behind him would you mind not mentioning anything about it to anyone. You promise Harold that you will say nothing.

The first thing to notice about Harold's case is the character of that which he seeks. Unlike the lawn mowing and ride example above, there is no "agreement" between the parties. The reason for this is

plain to see: Harold offers nothing in return for the promise that is

given him. More importantly, the promise Harold receives is of a

Richard Bronaugh, 'Lost Opportunities in Contract Damages', Valparaiso Uni- versity Law Review 17 (1983): 747 (emphasis supplied). 26 As Richard Bronaugh has observed in his discussion of Fuller and Purdue on reliance: "Contractual reliance occurs only in post-bargain contexts, when there is reliance on a promise. The idea of relying on the promise of one's co- contractor as one forms a contract with the party is an incoherent idea." Bronaugh, 751. 27 Scanlon, pp. 207-08. In correspondence commenting upon an earlier version of the present article, Professor Scanlon confirms that the case of Harold is designed to complete the argument that begins with the promisee taking steps in reliance upon expectations generated by a promise. As I argue directly, because the case of Harold only provides an answer to the question "To what is a promisee entitled?", it contributes nothing to sustaining Scanlon's argument for the moral basis of contract.

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distinct type: it is a gift. In exchange for nothing, Harold has been

promised that a favor will be besttowed upon him.28 The question for Scanlon, then, is "Why is the promisor morally obligated to deliver the

gift (favor) as promised?" Scanlon's answer to this question is twofold. He begins by noting

that, as he puts it, people in Harold's position "care about whether these assurances are genuine. One reason for caring is that they rely on these assurances in deciding what to do".29 As the earlier discussion of reliance demonstrated, the difficult case is not the one where Harold relies: the difficult one is where he does not. Scanlon is sensitive to this

point, for he states that in explaining the moral obligation to keep one's promises, reliance upon assurances "is not, however, the only reason, as Harold's case demonstrates".30 If, as Scanlon himself admits, reliance alone is an inadequate basis for explaining the moral obligation to keep one's promises, then in what does an adequate basis consist?31

Scanlon's answer comes as the second of the two arguments why Harold's case is of such importance:

From the point of view of both potential promisees and potential promisors, then, it is reasonable to want a principle of fidelity that requires performance rather than compensation and that, once an expectation has been created, does not always recognize a warning that it will not be fulfilled as adequate protection against loss, even if the warning is given before any further decision has been made on the basis of the expectation.32

28 There may be other moral reasons why the promise of non-disclosure should be kept. In the present context, I focus only on the moral grounds for keeping the promise. 29 Scanlon, 208. 30 Scanlon, 208. 1 One answer to this question takes account of the importance of promisors'

interests in being able to bind themselves. See Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986): p. 173. Scanlon is reluctant to base his account of promising on the interests of the promisor because "the interests of promisees are primary here and provide the clearest grounds of obligation." Scanlon, 208, note 6. 32 Scanlon, 208.

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The problem with this argument is that it confuses the distinction between a right and a remedy. The question of what makes a promise binding (that is, the question of right or entitlement) is separate and distinct from the question of what is sufficient to keep one to one's

promise (what it will take to discharge the obligation - the remedy).33 For example, in the lawnmowing and ride example, if I renege on my promise to drive you to work, the question whether I have breached a moral obligation is distinct from the question of what you are entitled to as the one to whom the promise was made. That you are entitled to the cost of a taxi ride to work is analytically antecedent to the

question whether I as the promisor am under a moral obligation to deliver it.

It is the confusion of these two questions that complicates Scanlon's

argument. While purporting to answer the question at issue ("What makes a promise morally binding?"), Scanlon offers an answer to a different question ("To what is a person entitled to whom a morally binding promise has been made?"). These are separate and distinct

questions: the question whether one has a binding moral obligation

33 Fuller and Purdue's 'The Reliance Interest in Contract Damages' is important in the present connection in that it identifies separate "interests" (expectation, reliance) which connect in the promising context. Expectations are generated the moment a promise is made. However, in addition to the generation of expectations, a promisee may also take steps in reliance upon a promise. These two aspects of the promisee's situation are analytically distinct "interests", one or both of which may be present in a promising context.

Seen through the lens of Fuller and Purdue, one discerns that the reliance/ expectation dichotomy complicates Scanlon's strategy. His argument begins as a reliance argument (Principles M, D, and L) and ends as an expectation argument (Principle F). But if promising is grounded in expectations one need never to resort to reliance. Because expectations are generated at the moment a promise is made, one need never consider the question whether the promisee has relied upon her expectations. The problem with a (largely) reliance-based argument of the kind Scanlon offers is that it cannot explain (apart from some particular practice of promising) the binding character of a completely executory (unrelied- upon) promise. This Scylla and Charybdis has plagued many a contract law theoretician. For discussion of the various positions on this matter, see Charles Fried, Contract as Promise (Cambridge, Mass.: Harvard University Press, 1981).

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needs first be answered before one can take up the question of an

appropriate remedy (performance or compensation) for breaking a moral binding promise.

III. THE VALUE OF "ASSURANCE": ONE VALUE OR TWO?

Let us return to a metaphor employed by Scanlon early in his article. In introducing his position, Scanlon indicates that in developing his account of the moral ground of the obligation to keep one's promises, he will show

that the wrong of breaking a promise and the wrong of making a lying promise are instances of a more general family of moral wrongs which are concerned not with social practices but rather with what we owe to other people when we have led them to form expectations about our future conduct.34

I want to take seriously Scanlon's claim that reliance upon representations made in the form of promise (reliance) and expectations generated as a result of being the recipient of a promise (expectation) are genetically related. Contrary to Scanlon, I believe that the values of reliance and expectation are incompatible grounds upon which to base a unified theory of promising (assurance) and, for that reason, Scan- lon's claim that he has provided a coherent account of promising cannot be sustained.

The basic problem with putting reliance and expectation togther in a single theory of promising is that the conceptual nerve of each interest or principle consistently undermines the other. At war are two

independent grounds of obligation: is it what a person expects (intention) that makes a promise binding or is what he does (action) in reaction to the making of the promise? The basic distinction here is between intention and action.3 As I hope to show, by putting these two grounds together, that is, intention and action, Scanlon's account

34 Scanlon, 200. 35 See P. S. Atiyah, 'Contracts, Promises and the Law of Obligations', in Essays on Contract (Oxford: Clarendon Press, 1986), p. 13.

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of promising rests on two principles or values, not one (assurance). Additionally, as I hope to show, these two values are incompatible.

To make my point, let us revisit the lawn and ride example discussed earlier. In exchange for your promise to mow my lawn I

promise to drive you to work. What is it that makes binding my promise to drive you to work? I think we would say that what makes this promise morally binding is that in making the promise I have en-

gendered an expectation in the promisee, which expectation it would, ceteris paribus, be immoral to disappoint. Scanlon agrees.36 The ground of the moral obligation to keep the promise is the expectation that I as the promisor have knowingly and intentionally created in the promisee. It is this intention that underwrites the obligation to fulfill the

promise. Now look at this scenario from the perspective of reliance. If we

make reliance the ground of obligation to keep promises, then our focus will be not on what the promisee expects but on what he does. If reliance on the part of the promisee is the ground for the promisor's obligation to keep the promise, then the promise cannot be binding until the moment of reliance. That is, before the promisee does

something in reliance upon the expectations created by the promisor, there is no obligation (principles D and L are satisfied).

We are now at the point where we can see the incommensurability of the reliance and expectation principles (remember, my argument is that what Scanlon refers to as "the value of assurance" is, in reality, two incommensurable values). If expectation is the ground of promissory obligation, then reliance has no substantive role to play in

grounding promissory obligation. If reliance is the ground, then the

binding character of a promise (e.g., the promises involved in the lawn and ride example) cannot be illuminated: only after the doing of some act in reliance upon expectations generated at the moment of promising will the promises be binding.

Scanlon insists that the reliance and expectation principles are

36 Scanlon, 205.

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"complementary".37 Our discussion of the lawn and ride example shows that this cannot be the case. If expectation is the ground of

obligation, then reliance is not complementary, it is superfluous. If reliance is the ground of obligation, then a promise is not binding until and unless there has been a change in position on the part of the promisee (reliance). But if no obligation can accrue until the moment of reliance on the part of the promisee, no executory promise can ever be binding. Since execution is not tantamount to reliance, no executed

promise can be the fulfillment of an obligation, unless there is reliance

by the promisee (and being the beneficiary of a promise is not the same as relying upon it).

The incommensurable character of the twin grounds of reliance and expectation comes to the fore most clearly when we look at these

principles from the remedial perspective. What is it that we are

protecting when we decide what one is entitled to when one is the

recipient of a morally binding promise? As I will show, either the reliance or the expectation interest is being protected, but not both. For this reason, Scanlon cannot claim that the ground of promising is

something called the value of "assurance". The lawn and ride example presents us with a perfect illustration of

the point of incommensurability. If I fail to pick you up for work after

you have mowed my lawn, to what are you entitled? In other words, what is the value of the promise I have made to you? The answer to this question, which is a question about remedies, will vary with the

perceived ground of the obligation to keep a promise. For example, if the value of the promise is the cost of a taxi ride to work, then the

expectation created by me at the time that we struck our deal will be the principle that underwrites my obligation to keep my promise and determines the value of that promise (i.e., the cost of a taxi ride).

If, however, reliance on the expectation were the preferred ground of obligation, the result would be rather different. Instead of being obliged to pay the cost of a taxi ride, I would be required to pay the

entirety of your expenditures in cutting my lawn. These expenses

37 Letter from Thomas Scanlon to the author, dated May, 15, 1991, p. 2.

400




could run many times the cost of your taxi ride to work, but such is the value of the promise from the reliance perspective. The possible disparity in financial outcomes is an indication that expectation and reliance are different and, as the analysis just provided demonstrates, often incommensurable normative interests. Additionally, these interests cannot be reduced to the more fundamental category of "assurance".

CONCLUSION

Scanlon contends that his account of the moral basis of promising relies not at all on any actual practice of promising. Throughout this article, I have granted this and other assumptions. I have done so in an effort to focus on the most important question raised by Scanlon's very interesting account of the moral obligation to keep one's promises. I have shown that while the account explains many cases where there has been reliance upon the representations of the promisor, the account fails to explain why a promise binds in cases where there has been no reliance.

Of greater theoretical importance is Scanlon's claim that the point of any practice of promising is protection of the value of assurance. I have demonstrated that this value is not one but at least two. Further, I have shown that these two values are incommensurable. Thus, Scanlon's argument fails both internally and on the merits. The end of the debate between the reliance and expectation perspectives in contract law is no closer now than it has ever been.

School of Law,

Rutgers University, Camden, NJ 08102, U.S.A.

401



Dennis M. Patterson

APPENDIX

Principle M (against unjustified manipulation): In the absence of special justification, it is not permissible for one person, A, in order to get another person, B, to do some act, x (which A wants to do and which B is morally free to do or not do but would otherwise not do) to lead B to expect that if he or she does x than A will do y (which B wants but believes that A will otherwise not do) when in fact A has no intention of doing y if B does x, and A can reasonably foresee that B will suffer significant loss if he or she does x and A does not do y. Principle D (due care): One must exercise due care not to lead others to form reasonable but false expectations about what one will do when there is reason to believe that they would suffer significant loss as a result to relying on those

expectations. Principle L (loss prevention): If one has intentionally or negligently led someone to expect that one will follow a certain course of action x, and one has reason to believe that the person will suffer significant loss as a result of this

expectation if one does not follow x, then one must take reasonable steps to

prevent that loss.

Principle F (fidelity): If (1) A voluntarily and intentionally leads B to expect that A will do x (unless B consents to A's not doing X); (2) A knows that B wants to be assured of this; (3) A acts with the aim of providing this assurance, and has good reason to believe that he or she has done so; (4) B knows that A has the beliefs and intentions just described; (5) A intends for B to know this, and knows that B does know it; and (6) B knows that A has this knowledge and intent; then, in the absence of some special justification, A must do x unless B consents to x's not being done.

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the value of a promise

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