Promise: Through the lens of Law and Linguistics

By Mihir Govande, II BA LL.B, ILS Law College, Pune


Law at a glance seems too obvious or simple, when it is devoid of its practical and scholarly embroidery. This frequent experience has been the embryo of the current topic. The idea of a promise is a very mundane, hardly interesting topic, used casually and ordinarily in our day-to-day lives. Here is a crude attempt to understand how two diverse and discrete fields of law and linguistics view a concept as simple, yet fundamental, as promise’.This write-up will primarily focus on the linguistic part of the topic as it is assumed that the readers have or do have an opportunity to have the relevant knowledge of legal aspect i.e. the law of contract.


INTRODUCTION:

The concept of ‘Promise’ has been around for as long as communication has been.

Here an attempt has been made to understand how two discrete fields of law and linguistics constitute the idea of a promise. It is intended to examine how both these disciplines -independent of each other’s influence- have come up with the idea of an efficient promise and necessary conditions for the same. Linguistics adopts the lens of Speech Act theory to determine rules and principles based on which efficient promises can be made. The law of contract essentially revolves around agreements, which are nothing, but promises made, accepted and thus enforceable under the eyes of law. Linguistics, through speech act theory, focuses on the syntactic and semantic structures and the efficiency they lend to a promise. Contract law, in addition to the structure of agreements, also examines the legality of the object. It also inquires into the intention of the parties to a contract and what ought to be achieved through it. Hence the objective of law is more expansive and diverse from that of the linguistics regarding promises.


Linguistic Take:


Speech act theory is an extension of the field of pragmatics in linguistics. Pragmatics can be loosely defined as words and their meaning in context.

Speech acts can be analysed on three levels[1],[2]:

For a better understanding, let us take a simple statement and see how its meaning transcends through these three acts. Let’s say that someone in a room says ‘It’s so hot in here!’.


1. A locutionary act: the performance of an utterance: the actual utterance and its apparent meaning, comprising any and all of its verbal, social, and rhetorical meanings, all of which correspond to the verbal, syntactic and semantic aspects of any meaningful utterance.

Example: The above given statement would be a locutionary act wherein the actor has expressed his observation that the ‘weather is hot’ or ‘the temperature in the room is high’.


2. An illocutionary act: the active result of the implied request or meaning presented by the locutionary act.

Example: if the locutionary act in an interaction is the statement “It’s so hot in here!” the implied illocutionary request is “Can you please turn on the air conditioner/fan?” or any such implication suggesting some action in reference to the locutionary act.


3. A further perlocutionary act: the actual effect of the locutionary and illocutionary acts, such as persuading, convincing, scaring, enlightening, inspiring, or otherwise getting someone to do or realize something, whether intended or not.

Example: For the statement the perlocutionary act would be the hearer’s response to the statement. If upon hearing the locutionary act and understanding the illocutionary act, the listener goes on to turn on the air conditioner, that physical act would be considered a perlocutionary act.


Constatives and Performatives


Constatives: They are basically statements which describe. They are descriptions and are qualitative in nature. Many times they speak on the existence of an entity by asserting whether an event/entity is ‘true’ or ‘false’.


Performatives: Performatives are utterances, which do not distinguish an entity, or an event based on its truthfulness or falsity, neither does it provide qualitative descriptions of evidence at hand.

Austin in his work, ‘How to do things with words?’ describes performatives by attributing two conditions as given below[3]:


1. They do not describe, report or constate anything at all, are not true or false and,

2. The uttering of the sentence is part of the doing of an action, which again would not be described as saying something,

E.g. Imperative statements conveying orders or requests. Linguistics considers the act of promising as a performative.


For the next part where the action of a promise being made will be examined let us assume the following scenario: speaker S makes a statement conveying promise P to a listener/receiver H, having the consideration/essential E to perform or abstain from performing a future action A.


Conditions for a Speech Act to be a Promise:

According to linguist John Searle, a performative can constitute an act of a promise being made if it fulfills the following conditions[4]:

1. Normal input and output conditions are obtained

The communication must be clear and articulate.

2. S expresses the proposition that E in the utterance of P

The speaker mentions the consideration (i.e. the object), which will be transferred by the means of the promise.

3. In expressing that E, S predicates a future act A of S

The whole idea of making a promise is suggesting a future action. Any kind of promise would result in the promisor/speaker predicting some action that he’ll commit in the future (and not in the past).

4. H would prefer S’s doing A to his not doing A, and S believes H would prefer his doing A too, rather than his not doing A

Idea of a valid promise always requires the promisee/hearer to be in consensus with the proposition P of the speaker. 

5. It is not obvious to both S and H that will do A in the normal course of events

The consideration of the promise should be unique and not something which could anyway be realised in the normal course of events, in absence of a promise.

6. S intends to do A

A promise essentially requires S to be sincere regarding his end of promise.

7. S intends that the utterance of P will place him under an obligation to do A

In a valid promise the Speaker expresses that he wishes to be under obligation for his proposition of E by making the promise itself. This idea of S being under obligation may be put explicitly or implicitly.

8. S intends that the illocutionary act of proposing P (i-1) to produce in H the knowledge (K) that the utterance of P is to count as placing S under an obligation to do A. S intends to produce K by means of the recognition of i-1, and he intends i-1 to be recognised in virtue of (by means of) H’s knowledge of the meaning of P

This rule provides that, whether explicit or implicit, the very fact that the promise is being made S intends to be put under the obligation to carry out the promise.

9. The semantical rules of the dialect spoken by S and H are such that P is correctly and sincerely uttered if and only if conditions 1-8 are fulfilled.

A promise P is effectively made if the above rules are followed.


The Legal take:

Firstly, it is essential to understand that a contract is defined as an agreement, which is: Agreement = Offer + Acceptance.


Hence an agreement cannot be seen as a promise but rather a dual/two-way promise.


It is an interesting observation that the same idea of promise, which when materialises as an agreement in the field of law, carries with itself the same amount of basic syntactic and semantic rules. The law of contract also lays emphasis on the same set of ideals for the structure and the meaning of the contents of a contract. It is seen that law and linguistics share certain common ideals while understanding a promise and an agreement. The above given conditions of an efficient promise can be briefly summarized in five rules. Let us now see the comparison between the legal and linguistic provisions for a promise. Hereinafter, ‘Indian Contract Act, 1872’ would be referred to as ‘the Act’.


Searle’s Five Rules

Searle gives five rules[5] for an efficient promise based on the aforementioned nine conditions.


Rule 1. Propositional Content rule (derived from the propositional content conditions 2 and 3)

P is to be uttered only in the context of a sentence (or larger stretch of discourse) T, the utterance of which predicates some future act A of the speaker S.

Legal Position:

Section 36 of the Indian Contract Act provides that the agreement regarding an impossible event (including an event in the past) is void ab initio. It essentially means that an agreement must be regarding a feasible act.


Rule 2 & 3: Preparatory Rules (derived from the preparatory conditions 4 and 5)

Rule 2: P is to be uttered only if the hearer H would prefer S‘s doing A to his not doing A, and S believes H would prefer S’s doing A to his not doing A.

Rule 3: P is to be uttered only if it is not obvious to both S and H that S will do A in the normal course of events. 

Legal Position:

Sections 14-20 define fraud, coercion, misrepresentation, etc.Sections 19-23 of the Act provide for the voidability of a contract in case of coercion, fraud, misrepresentation, mistake, etc. which essentially conveys the brief of rule 2. The idea that the hearer prefers the speaker to act in a certain way means that there is complete clarity as to what is the act, which is to be performed, by the means of the contract.

Section 25 of the Act provides for a contract to be void without a consideration[6], barring a few exceptions. An idea of a contract like a promise is incorrect without an idea of consideration. Although the act provides for some agreements without a consideration, such contracts (e.g. gift deeds) assume that certain emotional exchange must take place (e.g. love and affection), although it is not taken as consideration since law defines consideration in tangible terms. However the idea of a promise does consider emotional satisfaction derived by the promisor. As rule 3 states a promise always aims to achieve something, which is not feasible in normal course of events. It means that both the parties stand to gain something through the promise, an idea deftly conceptualized as consideration in law.


Rule 4: Sincerity rule (derived from the sincerity condition 6)

P is to be uttered only if S intends to do A.        

Legal Position:

Sections 73 and 37 provide for loss due to breach of contract and obligation of parties to a contract. This idea very well solidifies the sincerity to be expressed and acted upon by both the parties to a contract. If the statement-maker clearly intends to be bound by acceptance of the stated terms, the statement will amount to an offer and, on acceptance, there will be a binding contract. However, if there is no such intention, the statement will be part of the negotiating process (an invitation to treat) and any response to it will at best be no more than an offer. [7]


Rule 5: Essential rule

The utterance of P counts as the undertaking of an obligation to do A.

Legal Position:

The very definition of a contract is that of an agreement enforceable by a court of law. The law is very clear when it says that social promises being unenforceable by courts of law do not lead to contractual obligation.[8] Security of the person, stability of property, and the obligation of contract were for David Hume the basis of a civilized society[9]. The very essence of law of contract is to have a smooth, unhindered and mutually cohesive transaction. Hence law very well parallelizes the Essential rule.


CONCLUSION:

The fields of law and linguistics are vastly disparate. However somewhere at their core they expect similar qualities from their practitioners i.e. articulation, precision, efficiency, etc. Both aim at clarity of the object of the promise. Both are vigilant that a promise is made to further the intentions of the parties and not by undue influence. Both expect the willingness to be put under obligation to be communicated explicitly in the utterance of a promise.

Here the researcher has tried to highlight one of the many intersections that law has with different disciplines. There certainly would be many such commonalities waiting to be shed light upon.

[Disclaimer- The views expressed in the article are personal views of the author]

Mr. Mihir Govande ILS Law College, Pune

[The author may be reached at govandemihir@gmail.comail.com]

[This blog is edited by Mr. Shubham Gurav|Student Editor||Mr. Nihar Chitre|Content Administrator|| Mr. Rajmohan CV|Junior Editor||Adv. Dhruv Tank|Senior Editor]






[1] The concept of locutionary, illocutionary and perlocutionary speech acts is evidently understood in Ancient Indian Philosophy as well. Locutionary, illocutionary and perlocutionary are parallelized as वाच्यार्थ,लक्ष्यार्थ and भावार्थ respectively. (See. Sartha Samartha Daasbodh, by Shri Samartha Ramdas Swami, 10.6.17 to 10.6.25).

[2]Austin, John Langshaw. How to do things with words? (pp. 94-107) (2nd Edition. Edited by J. O. Urmson. Oxford: Clarendon Press , 1962).

[3]Austin, John Langshaw. How to do things with words? (pp. 4-10) (2nd Edition. Edited by J. O. Urmson. Oxford: Clarendon Press , 1962).

[4]Searle, John. Speech Acts – An Essay in the Philosophy of Language. (pp. 56-64) (1st Edition. Cambridge : Cambridge University Press, 1969).

[5]Searle, John. Speech Acts – An Essay in the Philosophy of Language. (pp. 60-63) (1st Edition. Cambridge : Cambridge University Press, 1969).

[6] Kapoor, N. D. Elemnts of Business and Economic Laws. (pp. 3-7) (19th Edition. New Delhi: Sultan Chand & Sons, 1992).

[7]Poole, Jill. Casebook on Contract Law . (p. 21) (13th Edition. Oxford: Oxford University Press, 2016).

[8]Kapoor, N. D. Elemnts of Business and Economic Laws. (pp. 2-5) (19th Edition. New Delhi: Sultan Chand & Sons, 1992).

[9]Hume, David. A Treatise of Human Nature. (p. 526) (1st Edition. Edited by Sir Lewis Amherst Selby-Bigge. Oxford: Oxford University Press, 1888).

#lawofcontract #linguistic #promise

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