Power of promises, legally speaking


First Posted: 1/2/2015

The change of the calendar year allowed many of us to make resolutions. Those New Year resolutions are promises to ourselves. However, we also make promises to others. What promises to others can we break? Who has the ability to force us to adhere to our promises?

Any time we agree to verbal or written contracts, we are essentially promising to do whatever the contracts call for us to do. Contractual promises are almost always promises that must be kept. Usually, the people who agree to the contract have the ability to force any other person who agreed to the contract to satisfy the promises made in the contract.

Contractual promises are enforceable because contracts facilitate one person doing, paying or promising something to another person who, in turn, does, pays or promises something to the other person. The legal term for this exchange of items, money or promises is called “consideration.” If a promise in a contract is to be enforced, the contract must include some consideration from each person who agrees to the contract. Simply stated, consideration makes promises in contracts enforceable.

For example, if I agree verbally or in writing to a contract to receive goods or services in exchange for my promise to pay, I can be held to that promise to pay.

Some contracts are understandably not enforceable, even with consideration. My girlfriend and I could promise to love each other, providing consideration from both of us. Later, even if I love my girlfriend, I cannot force my girlfriend to love me.

Generally, promises made outside of valid contracts are not enforceable. This is because our words and actions can hint as to all kinds of promises that are often just pleasantries or compliments. Also, people who lack the capacity to make decisions (via drunkenness, dementia, youth, etc.) can and frequently do make promises that, if enforced, could be contrary to the public good.

However, some promises outside contracts are enforceable. These promises are often enforceable because they include “detrimental reliance.” There are two main requirements to enforce a promise under detrimental reliance. First, the promiser has to have made the promise with the expectation or understanding that the person to benefit from the promise would rely on the promise. Second, the person to benefit from the promise has to do something that would negatively affect that person if the promise was not honored.

For example, if I promise to give my niece $10,000 in two weeks and fail to do so, I would likely not be held responsible for breaking my promise.

However, I may promise to give my niece $10,000 understanding that she will rely on my promise to put a deposit down on a house in the mean time. If my niece actually does put a deposit down on a house in the meantime, my niece could enforce the promise against me.

Very generally, only promises made for consideration or that induce detrimental reliance are usually going to be legally enforceable.

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