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When the promiser himself occasions the impossibility, it is neither more nor less than a direct breach of the promise; as when a soldier maims, or a servant disables himself, to get rid of his engagements. 2. Promises are not binding, where the perform( ance is unlawful.
time of making the promise. For, when any one promises a thing, he asserts his belief, at least, of the possibility of performing it; as no one can accept or understand a promise under any other supposition. Instances of this sort are the following: The minister promises a place, which he knows to be engaged, or not at his disposal:-A father, in settling marriage-articles, promises to leave his daughter an estate, which he knows to be entailed upon the heirmale of his family :--A merchant promises a ship, or share of a ship, which he is privately advised is lost at sea-An incumbent promises to resign a living, being previously assured that his resignation will not be accepted by the bishop. The promiser, as in these cases, with knowledge of the impossibility, is justly answerable in an equivalent; but otherwise
There are two cases of this: one, where the unlawfulness is known to the parties, at the time of making the promise; as where an assassin promises his employer to despatch his rival or his enemy; a servant to betray his master; a pimp to procure a mistress; or a friend to give his assistance in a scheme of seduction. The parties in these cases are not obliged to perform what the promise requires, because they were under a prior obligation to the contrary. From which prior obligation what is there to discharge them? Their promise-their own act and deed. But an obligation, from which a man can discharge himself by his own act, is no obligation at all. The guilt therefore of such promises lies in the making, not in the breaking of them; and if, in the interval betwixt the promise and the performance, a man so far recover his reflection, as to repent of his engagements, he ought certainly to break through them.
The other case is, where the unlawfulness did not exist, or was not known, at the time of making the promise; as where a merchant promises his correspondent abroad, to send him a ship-load of corn at a
time appointed, and before the time arrive, an em bargo is laid upon the exportation of corn-A woman gives a promise of marriage before the mar riage, she discovers that her intended husband is too nearly related to her, or that he has a wife yet living. In all such cases, where the contrary does not appear, it must be presumed that the parties supposed what they promised to be lawful, and that the promise proceeded entirely upon this supposition. The lawfulness therefore becomes a condition of the promise; which condition failing, the obligation ceases. Of the same nature was Herod's promise to his daughter-in-law," that he would give her whatever she asked, even to the half of his kingdom." The promise was not unlawful in the terms in which Herod delivered it; and when it became so by the daugh ter's choice, by her demanding " John the Baptist's head," Herod was discharged from the obligation of it, for the reason now laid down, as well as for that given in the last paragraph.
This rule," that promises are void, where the performance is unlawful," extends also to imperfect obligations; for, the reason of the rule holds of all obligations. Thus, if you promise a man a place, or your vote, and he afterward render himself unfit to receive either, you are absolved from the obligation of your promise; or, if a better candidate appear, and it be a case in which you are bound by oath, or otherwise, to govern yourself by the qualification, the promise must be broken through.
And here I would recommend, to young persons especially, a caution, from the neglect of which many involve themselves in embarrassment and disgrace; and that is, "never to give a promise, which may interfere in the event with their duty;" for, if it do so interfere, their duty must be discharged, though at the expense of their promise, and not unusually of their good name.
The specific performance of promises is reckoned a perfect obligation. And many casuists have laid down, in opposition to what has been here asserted, that, where a perfect and an imperfect obligation clash, the perfect obligation is to be preferred. For which opinion, however, there seems to be no reason, but what arises from the terms "perfect," and
"6 imperfect," the impropriety of which has been remarked above. The truth is, of two contradictory. obligations, that ought to prevail which is prior in point of time.
It is the performance being unlawful, and not any unlawfulness in the subject or motive of the promise, which destroys its validity: therefore a bribe, after the vote is given; the wages of prostitution; the reward of any crime, after the crime is committed: ought, if promised, to be paid. For the sin and misI chief, by this supposition, are over; and will be neither more nor less for the performance of the promise.
In like manner, a promise does not lose its obligation merely because it proceeded from an unlawful motive. A certain person, in the lifetime of his wife, who was then sick, had paid his addresses, and promised marriage, to another woman ;-the wife died; and the woman demanded performance of the promise. The man, who, it seems, had changed his mind, either felt or pretended doubts concerning the obligation of such a promise, and referred his case to Bishop Sanderson, the most eminent, in this kind of knowledge, of his time. Bishop Sanderson, after writing a dissertation upon the question, adjudged the promise to be void: in which, however, upon our principles, he was wrong; for, however criminal the affection might be which induced the promise, the performance, when it was demanded, was lawful; which is the only lawfulness required.
A promise cannot be deemed unlawful, where it produces, when performed, no effect, beyond what would have taken place had the promise never been made. And this is the single case, in which the obligation of a promise will justify a conduct, which, unless it had been promised, would be unjust. A captive may lawfully recover his liberty, by a promise of neutrality; for his conqueror takes nothing by the promise, which he might not have secured by his death or confinement; and neutrality would be innocent in him, although criminal in another. It is manifest, however, that promises which come into the place of coercion, can extend no farther than to passive compliances; for coercion itself could compel no more. Upon the same principle, promises
of secrecy ought not to be violated, although the public would derive advantage from the discovery. Such promises contain no unlawfulness in them, to destroy their obligation; for, as the information would not have been imparted upon any other condition, the public lose nothing by the promise, which they would have gained without it.
3. Promises are not binding, where they contradict a former promise.
Because the performance is then unlawful; which resolves this case into the last.
4. Promises are not binding before acceptance; that is, before notice given to the promisee; for where the promise is beneficial, if notice be given, acceptance may be presumed. Until the promise be communicated to the promisee, it is the same only as a resolution in the mind of the promiser, which may be altered at pleasure. For no expectation has been excited, therefore none can be disappointed.
But suppose I declare my intention to a third person, who, without any authority from me, conveys my declaration to the promisee; is that such a notice as will be binding upon me? It certainly is not: for I have not done that which constitutes the essence of a promise ;-I have not voluntarily excited expectation.
5. Promises are not binding which are released by the promisee.
This is evident; but it may be sometimes doubted who the promisee is. If I give a promise to A, of a place or vote for B; as to a father for his son; to an uncle for his nephew; to a friend of mine, for a relation or friend of his; then A is the promisee, whose consent I must obtain, to be released from the engagement.
If I promise a place or vote to B by A, that is, if A be a messenger to convey the promise, as if I should say, "You may tell B that he shall have this place, or may depend upon my vote;" or if A be employed to introduce B's request, and I answer in any terms which amount to a compliance with it; then B is the promisee.
Promises to one person, for the benefit of another, are not released by the death of the promisee; for, his death neither makes the performance impracti
cable, nor implies any consent to release the promiser from it.
6. Erroneous promises are not binding in certain cases; as,
1. Where the error proceeds from the mistake or misrepresentation of the promisee.
Because a promise evidently supposes the truth of the account, which the promisee relates in order to obtain it. A beggar solicits your charity by a story of the most pitiable distress; you promise to relieve him if he will call again:-In the interval you discover his story to be made up of lies; this discovery, no doubt, releases you from your promise. One who wants your service, describes the business or office for which he would engage you ;-you promise to undertake it when you come to enter upon it, you find the profits less, the labour more, or some material circumstance different from the account he gave you-In such case, you are not bound by your proinise.
2. When the promise is understood by the promisee to proceed upon a certain supposition, or when the promiser apprehended it to be so understood, and that supposition turns out to be false; then the promise is not binding.
This intricate rule will be best explained by an example. A father receives an account from abroad, of the death of his only son;-soon after which, he promises his fortune to his nephew. The account turns out to be false. The father, we say, is released from his promise; not merely because he never would have made it, had he known the truth of the case, for that alone will not do ;-but because the nephew also himself understood the promise to proceed upon the supposition of his cousin's death: or, at least, his uncle thought he so understood it ; and could not think otherwise. The promise proceeded upon this supposition in the promiser's own apprehension, and, as he believed, in the apprehension of both parties; and this belief of his, is the precise circumstance which sets him free. The foundation of this rule is plainly this: a man is bound only to satisfy the expectation which he intended to excite; whatever condition therefore he intended to