sible. A promise in this case binds us to the doing those acts, or to the using those endeavours; though such acts and such endeavours are not expressly contained in it; for he, who has obliged himself to the end, cannot but be understood to have obliged himself to the necessary means. Or rather, nothing can be properly called impossible for a man to do, which by his own acts or his own endeavours can be brought about. A promise therefore of this sort is binding from the beginning; and though we have not in express words bound ourselves to do those acts or to use those endeavours, yet if the possibility of performing what we have promised depends upon them, we are obliged to them in virtue of our promise.

tion of circum

the same.

Promises not to be XI. Some have imagined, that all promises are to be evaded by a sup understood to contain a tacit condition, that the promiser posed tacit condi- continues in the same situation, as when he promised. stances continuing I do not mean a tacit condition of being obliged, only if the matter of the promise continues possible or lawful to him; for there is no occasion to suppose such a condition, since the obligation of the promise, in such a change of situation, would cease of itself without the help of any tacit reserve. But I mean a reserve that, when the time of performance comes, it shall be as convenient to the promiser to make good his word, as it was at the time of promising.

Such a tacit condition as this, if the promiser is allowed to explain it, will put it into his power either to be obliged or not obliged at his own pleasure. For it is next to impossible for the circumstances of any man to continue so exactly the same, as not to give him an opportunity of finding out some alteration in them, between the time of promising and the time of performance. And it would be absurd to suppose a condition to be tacitly annexed to any obligation, which is of such a sort as to leave the obligation to the discretion of the party obliged.

But if the party to whom the promise is made, is to be the judge of the other's circumstances; if it is left to him to determine whether such a change has happened in them, as to set the obligation aside, such a tacit condition will be of no use to the promiser; he must, notwithstanding this reserve, stand to the courtesy of the party to whom he is obliged, and he could only stand to his courtesy to be released, if we suppose no such tacit condition.

Men of loose principles are apt to pretend that they promised under this condition, though they did not express it; not only when the performance of their promises by a change in their circumstances is become a real hardship, and common benevolence would engage the other party to release them, but when they find that by breaking their word they may make some petty advantage, which they could not make by keeping it. If there was any way of convincing men of such a character, that their promises could not suppose any such tacit condition, it must be when in making them they have expressed some other condition. The surest way of making a promise absolute in all other respects, is by annexing some one express condition to it. Where one condition is expressed, the natural presumption is, that no other is implied or understood; because if there had been any other in the mind of the promiser, such a fair opportunity as that of mentioning one condition would in course have led him to mention that other; when he designed to make conditions, and was employed about making them, he mentioned only

one; we have, therefore, good reason to believe, that he thought of and intended no more. Upon this account the strongest form of promising is to annex some slight condition to the promise, such as—If I live;— If I have my senses;-or some other of the like sort.

XII. *No promise is binding, unless the person who Promises of inmade it, has liberty to choose for himself, and under- fants, ideots, and standing to direct him in his choice. Without these madmen do not faculties of liberty and understanding, he is no moral bind.

agent, or is not capable of doing an act so as to produce any moral effect by it. Upon this account the promises of infants, ideots and madmen are not binding; they are not moral agents, and are therefore unable to do any valid act.

XIII. If it should be inquired, whether a rash pro- Rash promises, in mise is binding, it would be necessary before we deter- what sense bindmine upon this question, to examine what is meant by a ing.

rash promise. The words are sometimes used to signify only a promise which is made unadvisedly, or without sufficient deliberation, and sometimes to signify a promise where the matter for want of such deliberation is unlawful. As to the latter sort of promises, they are void in themselves, without considering whether they are rashly or advisedly made; promises, if the matter of them is unlawful, are not binding, though they were made with ever so much deliberation.

Promises which are called rash in the former sense, merely because they were engaged in too hastily, if there is no other defect in them, are binding. Every act of a person who has liberty and understanding, must always be considered as the result of proper deliberation; if he has these faculties, the presumption is that he made use of them; and it was his own fault if he did not. If it was otherwise, if a man's having these faculties was not a sufficient ground to presume, even against his own subsequent declaration, that he made use of them, there could be no effectual obligation derived from any human act whatsoever, because the agent need only declare in any case after the act is over, that he did not act deliberately, and then the obligation would be void.

XIV. Before we go on to consider some other ques- Promises become tions relating to promises, it may be proper to observe, binding by accep that a promise is not binding till it is accepted. The tance.

party to whom it is made, does not without acceptance acquire any right or demand upon the promiser; for no right or demand of any sort can be acquired without the consent of him who acquires it. And unless some person has a demand upon the promiser, he is under no obligation. From hence it follows, that a promise, after it is made, may be recalled without injustice, provided this is done before such promise is accepted; no right or demand is acquired, till the acceptance of the promise; and where there is no right, there can be no injustice. It ought, however, to be remembered, that as in alienations of property, so likewise in promises, it is not necessary for acceptance to follow the promise in order of time. When a person asks us to make him a promise, and we make it at his request, the promise becomes binding immediately; so that we cannot justly recall what we have done, upon pretence that he has not accepted it. His request is a sufficient evidence of his acceptance, though it

Grot. Lib. II. Cap. XI. § V.

+ Ibid. § XIV.

+ Ibid. § XVI.

went before the promise; unless, by any subsequent act or declaration of his, it appears that he had changed his mind.

*There may be some doubt, perhaps, whether mere acceptance is sufficient to bind the promiser, or whether it is not necessary that he should know of such acceptance. When the promise is made under either of these forms-I will that it shall bind me, when it is accepted -or I will, that it shall bind me, when I know it to be accepted; such precision leaves no room for this doubt. But when these forms are not observed, it seems to be the truer opinion, that in strict justice there is no obligation upon the promiser, till he knows of the acceptance; because an acceptance which is not made, and an acceptance which does not appear, are in respect of him the same thing. But yet if the promiser, without waiting a proper time to know the other parties' mind, should recall his word, he could not escape the charge of levity. Signs of consent XV. The manner of promising or of refusing, when in promises and a request is made to us, and the manner likewise of acacceptance. cepting a promise, must be some external mark of the mind's intention. Nods may, indeed, bear the construction of consent, or shrugs, of refusal; but these are not established marks either of the one or the other; common usage has not sufficiently established their signification. The best established declarations of our mind are words either spoken or written. In some cases, indeed, our consent may be collected from our silence; but then there ought to be some special reason, why, if we did not consent, we should speak; for silence, when there was no such reason, will not easily bear this construction; in many instances we might fairly be supposed to have been silent only because we had no mind to speak.

others.

Fear makes a proXVI. Before we can determine whether we are mise void in some bound by a promise which is extorted from us by force, instances, not in or by threatening us with some great harm, unless we make such promise, it will be necessary for us to distinguish whether the force so made use of comes from the party to whom we make the promise, or from some one else; and if it comes from him, we must distinguish farther whether that force is just or unjust; that is, whether he has any right or not to threaten us with such an evil as is the occasion of our making the promise. If we were to determine that no promises which arise from fear are binding, and to ground our determination upon this principle, that the promiser, when such force is made use of as produces his fear, has not liberty to choose for himself, and is upon that account incapable of binding himself, it is plain the words of the question are what lead us to this determination, rather than the sense of it. Force is commonly opposed to liberty; and from thence we are induced to conclude too hastily, that where a promise is extorted by force, the promiser has not his liberty. But the force here supposed is not such as will leave the promiser no liberty of choosing for himself; he is forced indeed to choose one part of a disagreeable alternative, either to make the promise, or to suffer the evil with which he is threatened. But however disagreeable the alternative may be, yet, when he has two things to choose out of, he cannot be said to have no liberty. It must be a very ill-natured and inhuman doc+ Ibid. § VII.

Grot. Lib. II. Cap. XI. § XV.

trine to teach, that the word of a person when he is in distress, and makes a promise in hopes of being relieved from it, is not as much to be relied upon, as when he is in full ease and happiness; and yet this must be the case, if a promise which we are induced to make from the apprehension of some great evil, is not binding upon us, merely because in such circumstances we have not a proper degree of liberty, as having only a disagreeable alternative before us, and being forced to choose out of two things, neither of which would have been the object of our choice if we had been in a better condition. Grotius was aware of this, and when he is considering only the situation of the promiser, he determines such an extorted promise to be binding.

His opinion, when he comes to speak of the other party, is very singular, and cannot be made intelligible. If, says he, the person to whom the promise is made, extorts it by bringing the promiser into any unjust fear, he is obliged to release such promiser; not because the promise was originally void in itself, but upon account of the unjust damage which he has done him. But how the promise can be valid, and the promiser not be bound by it, or how the promiser can be bound, and yet the other party have no demand upon him, or how this other party can have a demand and yet be obliged to give it up, is above my comprehension. An obligation on one part implies a demand or right on the other part. If, therefore, the promise is valid, or, which amounts to the same, if the promiser is obliged to performance, the party to whom such promise is made, must have a right to demand performance. But then, as a right to make such demand upon the promiser is inconsistent with an obligation to release him; it follows that one part of our author's opinion cannot be true; he must either allow the promise to be void, or must give up his notion of the other parties obligation to release the promiser.

If a

To clear up this matter, let us return to our first distinction. If the promise is extorted by any unjust threatenings, and the party to whom it is made is the author of this unjust fear, such a promise is not binding; not upon account of the promiser's fear, but upon account of the other parties injustice. No right can be founded in an injury: every unjust act is void, as to all the moral effects of it, and consequently can never produce a demand in the person who is guilty of it. Now all obligations imply a right which corresponds to them. Therefore, if there is no right on the part of him who unjustly extorts the promise, there can be no obligation on the part of him from whom it is so extorted. Upon these principles it will appear, that all promises which arise from fear, and from even unjust fear, are not void, though some are. magistrate by the fear of lawful penalties, forces me to make such promises or other stipulations, as I ought to have made without the use of force; my promise, notwithstanding the threatenings and fear from whence I am induced to make it, will be binding. There is nothing on my part, let the fear arise from what cause it will, which renders me incapable of binding myself; and if it arises, as is here supposed, from a just cause, there is no injustice in the other party, and consequently nothing which renders him incapable of acquiring a right. Nay, even where the fear is unjustly brought upon me, my promise will be binding, provided the fear arises from a third person, and the party to whom I make the promise is not concerned in the injustice. If I am afraid of

being murdered because some one has threatened it, and promise a reward to a person for guarding me, though I am unjustly brought into this fear, yet my promise will oblige me. There is, as in all cases of fear, nothing on my part which disqualifies me from obliging myself; and as the guard to whom I make the promise, does me no injury, he is not disqualified from acquiring a demand.

When, therefore, we maintain that an extorted promise does not oblige, it must always be done under these restrictions, that we are unjustly brought into fear, and that the party to whom we make the promise is concerned in the injustice.

void.

Erroneous promi- XVII. "Where some mistake or error in the promiser ses, how made is the only real and true cause of his making the promise, the obligation of such promise is void. When the supposed truth of a fact determines us to make a promise, where, if we had been rightly informed, we should have made none, we consent to be obliged upon supposition that the fact is true, and consequently the truth of the fact becomes a condition of our promise. If, therefore, the fact is false, the promise must be void; because all conditional promises are void, where the conditions are not made good, or because no man is obliged farther than he consents, and in the case now under consideration, we consent to be obliged no otherwise, than upon supposition that the fact is true.

It ought, however, to appear plainly from the promiser's words, or from the circumstances of the promise, or from the matter of it, that his error was the sole reason which effectually determined him to make it; because, if his obligation was to be void where this does not appear, it would almost always be in his power to make his promise void at his own pleasure. He might pretend that he was in some error, and that, if he had been well informed, he should not have engaged in such a promise. An error which does not appear, is of no more account in our dealings with one another, than an error which does not exist; the law of nature cannot allow any effect to be obtained by what does not fall under the notice of mankind. Caius is a candidate for a certain office, and I promise him my vote: at the time of making this promise, I supposed that Sempronius, to whom I have particular obligations, would not be his competitor; but before the day of election I find that he is. If this supposition of mine did not appear at all, if it was not plainly the reason which induced me to make this promise; it cannot affect the promise after it is made, so as to set it aside. I might not have this supposition in my mind, or if I had, yet since all men are not determined in their actions by principles of gratitude, I should perhaps have made the same promise, whether I thought about Sempronius as a competitor or not. But if, when I engaged to Caius, I expressly told him that I had great obligations to Sempronius, but believed his present situation to be such, as made me imagine he would not offer himself, a declaration of this sort plainly shows that I had this supposition in my mind, and that it determined me to engage myself to him. Or if Caius, when he applied to me, had said, that, notwithstanding my obligations to Sempronius, I might safely engage to him, because my friend would not oppose him, and in consequence of this assurance I promise my vote

Grot. Lib. II. Cap. XI. § VI.