9.1 Introduction

Edmund Husserl’s work has been studied with regard to his phenomenology of the state, less so his phenomenology of law – probably because the scattered reflections on it did not seem to yield rich results.Footnote ¹ However, A. Reinach, G. Husserl as well as A. Troller and others adopted phenomenological methods in their works on the philosophy of lawFootnote ² which were particularly fruitful concerning the concept of time and law.

For legal phenomenologists, time is not a structure external to law, as it belongs to the social world and thus also to the realm of law.Footnote ³ Drawing on Edmund Husserl’s phenomenology, Adolf Reinach and Husserl’s son Gerhart emphasized the importance of time for the understanding of the nature of law. To reveal the temporality of law, both begin with a qualitative time based on the temporal dimensions of present, future and past. They then distinguished this time from an objective and external time series of ‘earlier-than/later-than’.Footnote ⁴ Duration or extended present thus becomes the central temporal event for this qualitative time. In this way, both legal phenomenologists opened up conceptual possibilities for the understanding of the temporality of law that is distinct from natural and other social times. However, while Gerhart Husserl was able to work with his father’s lectures on the ‘Phenomenology of Internal Time Consciousness’ published in 1928,Footnote ⁵ Reinach’s approaches were devised independently and, in many ways, represent pioneering work for the exploration of the temporality of law based on the earlier Realistic Phenomenology. Reinach’s early death, at the age of thirty-three, meant he only managed to deal with the temporality of law in a fragmentary way in his ‘Die apriorischen Grundlagen des bürgerlichen Rechtes’ (‘The Apriori Foundations of Civil Law’), determining it as an essential structural element of the special existence of law. Gerhart Husserl, on several occasions, analyzed questions of law and time from the perspective of transcendental phenomenology and even Heidegger’s ‘Fundamental Ontology’.Footnote ⁶ Even if the presented elements of a theory of time and law remain very abstract, both succeed in determining time – far more than space – as a basic dimension of law. Considering the procedural character of modern law as well as the necessary temporality and historicity of legal discourses, both Reinach and Husserl thus throw a new light on an essential aspect of the structure of law. This alone is reason enough to take a closer look at some of the key points in the writing of both.

9.2 Adolf Reinach’s Approaches to a Theory of Law and Time

Reinach accomplished for the structure of law what Rudolf Stammler worked on for its ethical content: the determination of an essential a priori.Footnote ⁷ Reinach focused on an ‘ontology of law’ or an ‘apriorische Gegenstandslehre’ (‘a priori theory of objects’). What, for Stammler, was the ‘correct law’ (‘Richtiges Recht’) in the sense of a ‘natural law with changing content’Footnote ⁸ or an unconditional ideal for all changing content of natural law.Footnote ⁹ was for Reinach the ‘social act’ of law.Footnote ¹⁰ Reinach took into account the changeability of the living conditions of law but maintained that the content of positive law has its origin in a priori structures of legal social acts.Footnote ¹¹ While Stammler’s ideal form allows for changing natural law content as a measure of positive law, Reinach viewed every social act that produces positive law as having an a priori nature.Footnote ¹² This essence is not normative for positive law but contains its substantial characteristics. At the same time, this essence gives the ontological foundation of contingent positive law. Reinach’s approach distinguishes him from both legal positivists and natural law theorists: He is not looking for essential normative foundations of positive law or of right principles in a moral sense of natural law theory but for the essence of concrete legal rules. Reinach saw the temporality between the timelessness of logical and mathematical objects on the one hand and the simple being in time of physical and psychological objects on the other as belonging to the a priori structures of law.

For Reinach, the neglected study of the specific temporal structure of legal objects by his contemporaries was a major reason for his phenomenological analysis of the a priori foundations of law.Footnote ¹³ Legal ontology is supposed to lead us to new kinds of objects, which differ in structure from nature, namely the objects of psychology and ideal things. While temporality is an important element of their structure,Footnote ¹⁴ Reinach did not elaborate on his phenomenology of the temporality of law systematically. It is almost like Augustine, whom Reinach quoted with a statement from the ‘Confessiones’: ‘If you do not ask me what it is, I believe that I know. But if you ask me, then I no longer know it’.Footnote ¹⁵ Augustine then developed his theory of time from this question. Reinach leaves us with many ideas regarding a phenomenology of time in his works,Footnote ¹⁶ although in them he criticizes sciences that are only concerned with proving the existence of certain phenomena ‘at some point of objective time’.Footnote ¹⁷ He deemed that just as it would be wrong to describe the essence of red in physical terms of wavelength oscillations, it is also wrong to base the temporality resulting from the essence of law on an objective time.Footnote ¹⁸ The mistake here lies in trying to explain a color by using something else, in this case, a limited metric like the wavelength of light. As such, Reinach’s phenomenology sought to avoid this problem by leading to the essence of the experienced phenomenon itself. To do this, he claimed that we have to ‘put ourselves in the place’ (‘hineinversetzen’) of law and its temporality and not try to explain it through something else.Footnote ¹⁹ Therefore, both the timelessness of the a priori foundations of law and the temporality of positive law tell us something important about Reinach’s view of the nature of law. Both aspects are grounded in the structures of this essence (‘Sein’/‘Being’) of law, which constitutes the legal a priori.

9.3 Gerhart Husserl

To better appreciate Adolf Reinach’s pioneering work on a theory of law and time and, at the same time, to gain some perspective on the direction in which a phenomenological theory of legal time may develop, it is helpful to take a look at Gerhart Husserl’s work. This is because the latter’s theory has an advantage over Reinach’s work by having a more detailed legal basis and by assuming a greater plurality of temporal experiences.

In the context of his phenomenological investigations of the relationship between law and time, Gerhart HusserlFootnote ¹³⁶ did not explicitly refer to his father’s ‘Lectures on the Phenomenology of the Internal Consciousness of Time’.Footnote ¹³⁷ However, it is likely that when he published an article entitled ‘Recht und Welt’ (‘Law and World’) in the Festschrift for his father in 1929, Gerhart was aware of the lectures held in 1905 and that were edited in 1928 by Martin Heidegger and published in volume XI of the ‘Jahrbuch für Philosophie und phänomenologische Forschung’. Husserl had already committed himself to a phenomenological approach in his graduation thesis of 1925, which he dedicated to his father.Footnote ¹³⁸ He did not thematize it but applied the method of phenomenological reduction. In the years that followed he returned to phenomenological considerations and, in ‘Time and Law’, he went into explicit detail and, among other things, provided a vivid example using the ‘shoe’ to explain the nature of functional objects and then also of the law.Footnote ¹³⁹ Besides applying his approach, the completely different ‘Eigenart’ (specific character) of Martin Heidegger left some traces in Husserl’s work.Footnote ¹⁴⁰ Heidegger’s first main work on fundamental ontology ‘Being and Time’ was published in 1927 in Volume VIII of the aforementioned yearbook.

9.4 Conclusion

In conclusion, the foregoing has briefly contrasted Reinach’s approaches to a theory of the temporality of law with Gerhart Husserl’s theory of the temporality of legal consciousness. This was done to show the different conceptions of the temporal structure of law arrived at by the various approaches of phenomenology. While Reinach made his observations based on realist phenomenology, Gerhart Husserl worked with the transcendental and, to some extent, the fundamental ontological method. This led Reinach to anchor the temporality of law in the timeless a priori structures of fundamental legal acts and an objective temporality of law. Husserl, in contrast, excludes this sphere and understands timelessness itself as a social structure, namely the abstract time of the laws, borne by a permanent attitude of will. He is interested in the temporality of positive law as it results from the temporalization by the users of law. Both philosophers arrived at a point where they saw a specific temporality of law; for Reinach, this resulted from essentially structured legal acts while for Husserl it was born from legal consciousness.

Ultimately, for Reinach, the temporality of law rested in the unchangeable a priori temporal structures of legal acts in which everything seems to have already been decided. For him, everything rests on their realization, even though a legislator can deviate from this in its ‘determinations’. However, the fact that concrete law is also an expression of deliberations, evaluations, optimizations and considerations, while not excluded by Reinach, was not sufficiently included in his theory of the temporality of law. After World War I, the emergence of democratic, administrative and judicial procedures with their different temporal structures and novel ideas about a newly anticipated future, presenting the past and a will to maintain the legal state, played a greater role than at the end of Germany’s constitutional monarchy when Reinach developed his theory. In his writings during the Weimar Republic and later on, Gerhart Husserl was able to incorporate these historical legal developments into his theory of the realization of law as temporalizing. In contrast to Reinach, he does not distinguish between a timeless a priori sphere and a temporal one but between an abstract time of the enacted law and its realization in concrete legal acts.

Both Reinach and Husserl broke new ground, each in his own way, laying the foundations for a theory of the temporality of law. However, the positive law of the present is more than determining timeless a priori structures or expressing a temporal consciousness of law. This is because it produces its own temporality, one grounded in the extended present of the law’s validity, which opens up a future horizon in which legal persons can rely on predictable meanings of their legal acts. Law regulates its own present, future and past and herein lies its temporality. Adolf Reinach and Gerhart Husserl, as legal phenomenologists, opened the door to approaches to a theory of law’s temporality that can be further developed. Finally, and despite the incompleteness of their respective works, they have shown that contrary to the ancient idea of a possible approximation of positive law to an immutable natural law, law has its own temporality.Footnote ¹⁶⁹

10.1 Introduction

Speech act theorists, such as John Austin, Peter Strawson, Zeno Vendler, John Searle, Michael Hancher or Mitchell Green,Footnote ¹ take a gift to be among the range of things we can do with words. From their perspective, a gift is an illocutionary act, an act performed in uttering a meaningful sentence. In the right circumstances, saying, for example, “This bike is yours” is what it takes to gift it to you.Footnote ² The consensus is that the utterance, whether implied or expressed, is a necessary component of the act.

Speech act theorists give their insights about gifts in passing. Once compiled, their scattered remarks reveal some remarkable disagreements and aspects left in the dark. One disagreement regards to what extent the giftee participates in the act. Most speech act theorists require gifts to be taken in by their recipients. As for any other illocutionary acts, the need to be heard and understood is taken to be among its felicity conditions. However, Peter Strawson contemplates the possibility of a gift unknown to its recipients in the form of a “will that is never read”.Footnote ³ Speech act theorists who insist on the need of an uptake diverge about whether the giftee is further required to accept the gift for the act to be completed. Besides these points of division, speech act theorists have neglected the deontic dimensions of gifts. If I give you my bike, what I seem to be giving you is the right to use it forever while ipso facto losing mine. John Austin hints at the related deontic changes when he classifies gifts (together with ordering, prohibiting, enacting law) among “exercitives” by which “powers, rights and influence” are conferred.Footnote ⁴ Likewise, Zeno Vendler includes gifts among “operatives” (along with “arrest, sentence, condemn, fine, offer, surrender”) issued when “I say something and the social, ritual, or legal effect ipso dicto takes place”.Footnote ⁵ Austin and Vendler do allude to the deontic effects of gifts but leave it at one’s guess what they precisely are. These are quandaries about gifts, at best quickly addressed in the past, providing the occasion, seized in the present chapter, to expound on the topic. To further reflect on how gifts are made with words, I mobilize Adolf Reinach’s The Apriori Foundations of the Civil Law, first published in 1913.Footnote ⁶ Reinach has written very few and sparse remarks on gifts.Footnote ⁷ However, his theory of “social acts”, developed almost fifty years before How to Do Things with Words (1962), provides the notions and distinctions that are useful to elucidate the aspects of gifts which Austin and his followers have parenthetically addressed or neglected. As many commentators have stressed, what Reinach calls “social acts” are very much like Austin’s “illocutionary acts”.Footnote ⁸ Following the crowd, I will also assume that “they are the same acts”Footnote ⁹ and, to avoid confusion, I use the slashed terms “social/illocutionary” to refer to both at once.

The discussion is structured around the previously outlined issues. Section 10.2 addresses Strawson’s example of the will that is never read. This example does not refute the giftee’s need to grasp the utterance in which gifts are made, I argue, because the act of writing a will is not yet the social/illocutionary act of making a gift to one’s heir. The question whether gifts need to be accepted is discussed in Section 10.3. In light of Reinach’s discussion of acceptance of promises, I argue that, although a gift need not be accepted, to refuse it blocks its completion. Section 10.4 critically examines Austin’s intuitive view of a gift as always involving a “gesture”, in the usual form of a handing over of something. This view, I argue, misguidedly focuses on the things that are gifted, whereas it is in fact the ownership over these things that is in all cases transferred to the giftee. Relying on Reinach’s insights on transfers and ownership, I put forth the “Ownership View of Gifts”, as I call it. I then consider the alternative view of charity-gift proposed by Waldron in Section 10.5. According to Waldron, a gift can be made by waiving property rights.Footnote ¹⁰ While I show that Waldron’s view does not withstand scrutiny, I also show how a gift can be made by an act of waiving one’s claim over someone else’s property rights. It is the main result of the present Reinachian inquiry that most of the puzzles raised by gifts dissolve once attention is redirected from its physical aspects – from the gestures, the thing that is gifted, its change of location – to the metaphysical underpinning of the speech act that is performed.

10.2 Does the Gifter Need to Secure Uptake?

The present inquiry focuses on those gifts that are made in the performance of a locutionary act.Footnote ¹¹ Relevant examples of the latter are “I hereby give you my bike”, “Here is a gift for you”, “Look what I got for you!”, “Have some wine”, or simply “My gift!” while pointing at the thing thus being gifted. The act done in each of these utterances is a gift.Footnote ¹² Giving birthday presents, giving cash gifts, writing a will, making a bequest, distributing grants, bestowing prizes, donating money, almsgiving, etc. are commonly taken to be instances of gifts. Are they all genuine instances of the kind? The nature of gifts – what a gift fundamentally is – is a question that has been largely neglected.Footnote ¹³ It is also one that need not be resolved for the purpose of the present inquiry. Nothing should be presumed about the genus of gift, not even that the alleged instances of gifts listed above have any common properties in virtue of which they are gifts. It suffices that certain utterances have the social/illocutionary force of a bequest, of a birthday gift, of almsgiving, etc., and that the latter are commonly described as “gifts” in ordinary language.

As a social/illocutionary act, a gift depends on the linguistic competencies of its two parties. I focus on the illocutionary acts of making a gift, in contrast to requesting one (“Will you give me your bike?”), to promising to make one (“I pledge to give 10 percent of my income to the poor”), to discouraging (“No tipping”) or to encouraging one (“Give What You Can”). Verb-terms and expressions commonly spoken to express the making of a gift are “to give”,Footnote ¹⁴ “to bring something as a gift” or simply “to gift”.Footnote ¹⁵ Some clarifications are in order. First, the utterance through which a gift is made need not contain the term “gift” nor any similar expressions. “Take it!”, “Have it!”, “I bought it for you!” are efficient alternatives.Footnote ¹⁶ Moreover, the same utterance can serve different illocutionary acts. In some context, someone may say “The pen is yours!” to give it to you, to order you to grab it, to warn you against the risk of losing it, etc. Reinach admits that a social/illocutionary act can be performed silently as long as it is “expressed in mien, gestures”.Footnote ¹⁷ In some circumstances, nodding, raising one’s eyebrows, smiling while pointing at the bike are the outward signs of the illocutionary act. Finally, let us note that the verb give can serve other illocutionary acts than a gift. If I say: “I am giving a party next Saturday”, “giving” means “organizing”, so it is correct to understand what I say as me announcing the event.

Both for Reinach and Austin, a social/illocutionary act must be heard and understood. Austin speaks of the “need to secure correct understanding”Footnote ¹⁸ of the audience. According to Reinach, an uptake is a necessary condition of a social/illocutionary act. “The turning to another subject”, he claims, “and the need of being heard [by that subject] is absolutely essential for every social act”.Footnote ¹⁹ Social acts need “to be announced or communicated” in contrast to “internal acts” (such as forgiving, deciding) which “can lack any announcement to others”.Footnote ²⁰ However, Strawson wonders if securing uptake applies to the case of a bequest that remains undisclosed to its recipient:

The case of a will that is never read is not meant to refute, but merely to downplay, the need to secure uptake. The latter, as Strawson grants, remains “essentially a standard, if not an invariable”Footnote ²² element of all social/illocutionary acts.

Against Strawson, one may insist that making sure the utterance is understood is not a mere desideratum, but an essential aspect of illocutionary acts. As Reinach argues, the utterance “is not something that is added thereto as an incidental extra; rather, it stands in the service of the social act and is necessary in order that this should fulfill its announcing function”.Footnote ²³ That announcing function is precisely not satisfied in Strawson’s case of the will that will never be read. However, merely restating the necessity of being read (heard, understood, having an uptake, etc.) of all social/illocutionary acts does not suffice to rule out Strawson’s case. Indeed, isn’t the point of that example to cast doubt on the necessity of uptakes that both Austin and Reinach take to be necessary to social/illocutionary acts: to suggest that unbeknownst gifts really are gifts?

There is an ambiguity in the act of making a will which may have mislead Strawson into thinking that it qualifies as an illocutionary/social act. The ambiguity is between the act of writing a will and the outcome of that act in the form of a legal document named “a will”. The suggestion here is that the need to secure uptake is true about that document, but not about the act of writing that document. Reinach’s subtle distinction between acts that are “other-directed” and acts that are “addressed” is relevant to capture Strawson’s confusion. Reinach defines “other-directed acts” as acts that are “essential[ly] directed to a subject other than the originator”.Footnote ²⁴ For instance, to forgive or to envy are always to forgive and to envy someone. By contrast, acts that are addressed to someone require the participation of another person who “consciously takes in” the act: who hears and understands the utterance through which the act is made. While all social/illocutionary acts are thus “addressed” according to Reinach, they are not all other-directed. Indeed, “other-directedness” characterizes certain “internal acts” such as forgiving you and being afraid of you. The addressed/non-addressed distinction and the directed/non-directed distinctions are hence orthogonal. Promises are both other-directed and addressed. Declarations and enactments are addressed (therefore social/illocutionary acts) but are not other-directed.

These distinctions may have eluded Strawson and led him to mistakenly assume the other-directedness of the act of writing a will makes it a social/illocutionary act. However, once one rather focuses, as Reinach invites us to, on the need to be addressed, it becomes clear why the act of writing a will is not an instance of the social/illocutionary kind. The writing of a will, like any other act of writing, is fully completed before it is read by anyone. “A good thing done”, the testator may think once she is (indeed) done with the task. However, the mere writing of the will, while a crucial step in the making of a gift, is not (yet) a gift. It is only when the outcome of the writing – the written document – is read and understood by the court and the heirs at the testator’s death that the latter really are gifted what is left to them in the will. Until then, the document has not fulfilled its purpose: no gift has been effectively made. In short, the will qua a document must be addressed to the heirs and taken in by them. The sheer act of writing is not addressed in the related Reinachian sense of the term but also does not count as a gift, either legally or from an a priori point of view.Footnote ²⁵

The necessity of hearing and understanding the utterance by which gifts are made (discussed and defended in this section) is different from the necessity or the mere conceptual possibility of accepting them, which is discussed in the next section.

10.3 Do Gifts Require Acceptance?

In How to Do Things with Words, John Austin asks: “Are you required to accept the gift if I am to give you something?”, then notes that “in formal business, acceptance is required”,Footnote ²⁶ but then wonders if it also features in casual gifts. If so, what appears to be the act of one person – a “unilateral act” as Austin names it – turns out to be the act of two, namely, a “bilateral act”. In the latter case, the giftee participates in the act in a more demanding form than by simply hearing and understanding the utterance in which it is made. He would have to accept the act.Footnote ²⁷ The question is not whether gifts can be refused (of course, they can). The question is whether a gift has been made in the circumstance where it is refused. If a gift is a bilateral act, refusing it prevents it from being brought into completion. Austin then ponders if the seeming bilaterality of gifts is a defining feature of all social/illocutionary acts: “The question here is how far can [illocutionary] acts be unilateral. Similarly the question arises as to when the act is at an end, what counts as its completion?”Footnote ²⁸

Is acceptance of a gift essential to its making? If the gift causes trouble to its recipient (think of a dog), it seems that the giftee must have the option to do something to prevent the act. The other intuition relates to the contrary case where the giftee, being wholly pleased with what she is gifted, would rightly consider accepting it as unneeded. The asymmetry between the cases of the unwanted gift and that of the welcome gift is not well accounted for if gifts are (merely) thought of as either unilateral or bilateral acts.

Reinach’s insights on acceptance, I submit, provide a way to reconcile the two intuitions. Reinach clarifies the term by distinguishing between five different meanings of acceptance, among which is the “purely inner experience, an inner ‘saying yes’ an inner assent”Footnote ²⁹ to some social/illocutionary act. Accepting a gift is just the experience of the internal act of approving of it, of finding it to one’s taste. Alternatively, accepting can itself be “a social act in its own right”.Footnote ³⁰ To accept is, in this other sense, always to accept or express a response to another social/illocutionary act (an invitation, to take a bet, an offer, etc.). Three possibilities can be distinguished in this regard. Accepting a social/illocutionary act can either be:

1. (i) a possible response to that act

2. (ii) an impossible response to that act

3. (iii) necessary to the completion of that act.Footnote ³¹

Let us look at the related three cases more closely with the view to figuring out which one, if any, is relevant to the cases of accepting the gift. First, acceptance is a possible response vis-à-vis those social/illocutionary acts which do not depend on it for being done. Nominations and invitations are cases in point. While you do have the option to either decline or accept my invitation to dinner, I have invited you regardless. Not so, it seems, as far as gifts are concerned, if it is true that a gift has not been made in the case its recipient refuses it. Unlike refusing an invitation, refusing a gift does stop its completion.

Secondly, acceptance is impossible vis-à-vis certain social/illocutionary acts which are such that to either accept or decline does not make sense. Reinach holds commands and requests to be examples of acts that are not meant to be accepted nor declined. Reinach writes that “with [commands and requests] it is a question of imposing an obligation on the addressee of the social act, and this of course really does not need some acceptance”.Footnote ³² For example, a teacher who commands a late student to arrive on time next time imposes an obligation on that student. The teacher should not worry about securing the student’s acceptance although she might not be indifferent as to whether the student takes her command seriously or whether she internally assents to it. Obligations created by commands and requests are such that the option to accept, or, for that matter, to decline them, is just not there. To be sure, commands can be obeyed or disobeyed, and requests can be answered or left unanswered. However, to disobey is to not act as one is commanded to act, but the important point is that the command has been fully made independently of whether it is obeyed or not. Unlike a command, however, a gift is such that the option to refuse it is there.

A third way acceptances relate to illocutionary/social acts is by being a necessary component of such acts. Acceptance is here required for the completion of the illocutionary/social act of which it is the necessary response. According to Austin, a bet is a relevant instance of the latter. “For a bet to have been made”, Austin notes, “it is generally necessary for the offer of the bet to have been accepted by a taker (who must have done something, such as to say ‘Done’)”.Footnote ³³ A bet is an instance of a “bilateral act”, and the question is whether a gift is, as Austin also suggests, another bona fide instance of the kind. The idea is that it takes two for one to make a gift, the giftee playing his part of the act by accepting the gift, either explicitly or implicitly.

Michael Hancher concurs with this hypothesis.Footnote ³⁴ The bilaterality of certain social/illocutionary acts, Hancher argues, is brought to light by the redundancy of adding “and he accepted the act” to any description of the related act. In particular, the bilaterality of appointment is underlined by noting that, in the following two sentences, “the extra clause [in (b)] goes without saying”:Footnote ³⁵

1. [a] Smith appointed Jones to the committee.

2. [b] Smith appointed Jones to the committee and John accepted it.

Applying Hancher’s argument to gift, one may note the same stylistic awkwardness in:

1. [c] Julie gave her bike to Paul, and Paul accepted it.

Acceptance is already featured in (what is misguidedly described as) Julie’s act. Julie’s act is a bilateral act, one may further argue, because, unlike declining an invitation, declining a gift prevents it from being made. And this is in accordance with the intuition, previously described, about how the refusal of gifts which carry obligation results in their cancellation.

However, construing gifts as bilateral acts fails to account for the asymmetry underlined previously between the cancelling effect of refusing unwelcome gifts and the superfluity of accepting wanted gifts. The related asymmetry may be explained, I shall argue, in light of Reinach’s view about how the acts of accepting and declining respectively relate to promises. Reinach holds acceptance to be an unnecessary component of promises. Acceptance is not required “for the efficacy of the promise” according to Reinach and “can at most serve to confirm” it.Footnote ³⁶ It is “not necessary to a promise that it be accepted.” The addressee of the promise, Reinach claims, only needs to “take cognizance of the act of promising”.Footnote ³⁷ Acceptance is therefore a possible response to a promise (akin to acceptance being a possible response to an invitation). However, Reinach also holds conversely that “an act of declining [a promise] prevents both claim and obligation from coming into being”.Footnote ³⁸ For example, if you decline my promise to invite you to play tennis with me once a month, you prevent me from incurring the obligation to invite you to play. The option of blocking a promise toward oneself seems important to secure when the promise gives rise to an obligation to act in some unwanted way. In the contrary case, accepting a promise appears as a superfluous addendum. Reinach’s view about the distinct jural effects of accepting and of declining promises points toward the following fourth hybrid case in which:

1. (iv) on the one hand, accepting a social/illocutionary act is an impossible response to that act and, on the other hand, declining the same social/illocutionary act brings its performance to a close.

The asymmetry previously outlined regarding accepting and refusing gifts, I submit, is another instance of these fourth hybrid cases. While it is not necessary for a gift to be accepted, declining a gift prevents its completion. The underlying explanation for the related asymmetry could be analogously related to the importance of not imposing on the recipient of a gift any potentially unwanted obligations. In particular, when a gift entails the transfer of certain obligation(s),Footnote ³⁹ the option to prevent the gift from being made by refusing it should be at the giftee’s disposal.

The important point to retain is that whereas a gift does not require acceptance for being done, refusing a gift does block its completion. The distinct roles of accepting and refusing gifts, to which Reinach draws our attention through his analysis of acceptance of promises, seem to have been overlooked by Austin and Hancher. Having resolved the questions of the essential role of uptake (Section 10.2), and of the unessential role of acceptance (Section 10.3), I shall now emphasize the deontic dimensions of gifts.

10.4 Gifting by Transferring Ownership

A gift is intuitively visualized as someone handing something over to someone else. Austin has done a lot to show what is wrong with that view, redirecting our attention from the physical actions – here the handing – to the utterance. The latter, as Austin claims, is “a, or even, the leading incident in the performance of the act”.Footnote ⁴⁰ However, Austin also remains faithful to the intuitive view by granting a key role to the gesture. “It is hardly a gift if I say ‘I give it you’ but never hand it over”.Footnote ⁴¹ The gesture associated with a gift need not be a handing. It can be a passing, a pointing, etc. In all cases, the intuitive idea seems to be that whatever is gifted to someone must be put at her disposal. To be sure, as it has certainly not escaped Austin, certain giftables (cars, houses, lands, etc.) are not liable to be handed over.Footnote ⁴² Implicit in the received view are therefore metaphysical limits as to what can be gifted. Only entities that are liable to be held and relocated are “giftables”.Footnote ⁴³ These properties appropriately disqualify concepts, feelings, numbers, weddings as possible objects of gifts. However, the view also restricts “giftables” to “movables”, unduly ruling out gifts of things that are too heavy for being handed to anyone (cars) or gifts of things that by their nature (lands) remain where they are.Footnote ⁴⁴ Be that as it may, it is tempting, following Austin, to assume that the handing, or some cognate gesture, is necessary to most other central cases of giftsFootnote ⁴⁵.

In this section, I show why that intuitive view is not correct, and not even an accurate account of the restricted range of cases of movable gifts (flowers, rings, etc.) it is supposed to be. The main problem of the intuitive view is that it targets the things (the bike, the flowers, the glass of wine) involved in gifts as what is given to the giftee, whereas it is in fact their ownership that is fundamentally targeted by the act. When I give you my bike, what I fundamentally do is to convey to you the ownership I have over it. The revision suggested here is meant to be commonplace. Still, the change of focus from the object of gift to its ownership also has important implications, as I intend to show, which speech act theorists have disregarded as the result of their focus on the things that are gifted instead of the change of ownership that these things undergo when they are brought to someone as gifts.

Let us remark, first, that the distinction between the thing that is owned and the ownership that someone has over that thing is sometimes hidden in ordinary talk. French people refer to what they own as “ma propriété” (“my ownership”) as if ownership was a generic category that comprises all the things that someone owns. Likewise, one commonly hears of “someone having ownership over something”. This misleadingly suggests that ownership can be had by someone, therefore being itself liable to enter into another ownership relation, in a regressus ad infinitum inasmuch as this new ownership relation would also be liable to be owned, etc.

Reinach’s theory of ownership, to which I now turn, scrupulously prevents the confusion.Footnote ⁴⁶ This is because Reinach conceives ownershipFootnote ⁴⁷ as a dyadic relation between someone (the owner) and a thing.Footnote ⁴⁸ To have the ownership of a bike is to relate to that bike in a particular way. Reinach further qualifies the ownership relation as a “thoroughly ‘natural’ relation which is no more artificially produced than is the relation of similarity or of spatial proximity”.Footnote ⁴⁹ Reinach also holds ownership to be a prelegal relation, one that “comes into being even where there is no positive law”.Footnote ⁵⁰ The island on which Crusoe is shipwrecked provides the fictitious law-free environment in support of that view. “When Robinson Crusoe produces for himself all kinds of things on his island, these things belong to him”.Footnote ⁵¹ The ownership relation is further qualified as a primitive relation, that is, as one that “cannot be further resolved into elements”.Footnote ⁵² Moreover, but no less crucially, it is, Reinach claims, ownership over a thing which confers to the owner “the right to deal in any and every way with the thing”.Footnote ⁵³ Against the proponents of the bundle of rights theory of ownership, Reinach urges us not to conflate the ownership relation with “the absolute right [of the owner] to deal in any way he likes with the thing which belongs to him”.Footnote ⁵⁴ These absolute property rights, while distinct from the ownership relation, are also “grounded” in the latter. Reinach subscribes to the view that ownership “is itself not a right over a thing, but rather a relation (Verhältnis) to the thing, a relation in which all rights over it are grounded”.Footnote ⁵⁵ As Olivier Massin suggests, the grounding relation between the absolute property rights and ownership is an essential relation.Footnote ⁵⁶ It is in virtue of the essence of ownership that whoever owns a thing also has the absolute right to use that thing in whichever way she desires.

The ownership relation between an owner and what she owns stands in contrast to other kinds of relations between persons and things. In particular, the ownership relation differs from the relation of possession that someone has over the thing he has at his disposal. If the ownership/possession distinction sounds otiose, it is because often the owner of a thing also possesses it. However, it is among the sophistications of Reinach’s theory of ownership to accommodate the cases where possession is dissociated from ownership. The dissociation occurs when someone steals something. While the thief now has possession of the bike, he has not acquired its ownership.

Once ownership, so defined, is recognized as the targetFootnote ⁵⁷ of gifts, it becomes clear why the gestures (the handing over, passing, putting forth, etc.) included in the intuitive view are not relevant to the act. Ownership occupies no space, has no weight, nor has the three-dimensions of its two relata. If so, while the thing that is gifted may be liable to be grasped, handed over to the giftee and be thus relocated, its ownership moves nowhere, and, in fact, is nowhere. And yet, it is really the ownership over the thing – being conveyed, as it were, from the gifter to the giftee – that undergoes the crucial ontological change in all cases. The complexity of gift as a “four-legged act” (involving a gifter, a thing that is gifted, the ownership of that thing, and the giftee) is revealed. We may accordingly redescribe a gift as an act by means of which someone (namely, the gifter) makes someone else (namely, the giftee) the new owner of a thing.

The alternative and presumably refined view of gift here outlined – the Ownership View of Gift (hereafter “OVG”), as I name it – differs from the intuitive view in several respects. First, the intuitive view, because it focuses on the thing that is gifted, is attentive to what now appear to be contingent features (the change of location, the episodic nature of the act). The OVG focuses on the ownership over that thing as the necessary target of gifts. From this perspective, a gift is an instantaneous act (while it takes time for a thing to be handed over to someone, the change of ownership undergone by that thing takes no time).

Secondly, whereas the intuitive view ascribes a central role to the physical gestures by which the gift is carried to the giftee, the OVG urges the neglect of these gestures and puts forth the (implied or explicit) utterances through which gifts are made as essential to their performance.

Thirdly, whereas, on the intuitive view, a gift is one by which the gifter gives a good to someone, the OVG offers a different view of the nature of the illocutionary of the act – one that makes someone the new owner of somethingFootnote ⁵⁸ – that is performed when a gift is made.

Fourthly, whereas the intuitive view of gift, focusing as it does on the thing that is being gifted, is prone to identify the “commissive” aspect of gift (i.e., the fact that the speaker is committed to bring that thing to the giftee), the OVG, emphasizing the underlying ontological change of ownership, redirects attention to the power of gifts to change reality. As Reinach insists, the ontological change taking place when “a thing is conveyed ‘into the [ownership]Footnote ⁵⁹ of another’ […] is more than a linguistic turn of phrase. It is really the case that the supporting member of the relation of owning (i.e. the owner) modifies the relation by his own act in such a way that he drops out of the relation and someone else takes his place, though for the rest the thing and the relation remain identically the same”.Footnote ⁶⁰ To understand the nature of the power of the transfer of ownership, Searle’s distinction between speech acts with a “word-to-world” and those with a “world-to-word direction of fit”Footnote ⁶¹ is helpful. The typical utterances (“this is yours”) through which gifts are made have both directions of fit. Their propositional content not only “represents the reality as being so changed”,Footnote ⁶² it also modifies the reality to make it match the content. The distinctive power of gifts to change reality is one the intuitive view, fixed as it is on the contingent changes of location sometimes undergone by the thing that is gifted, cannot properly register. Uttering “I hereby transfer to you the ownership of the bike”Footnote ⁶³ is more truthful, even if admittedly clumsy, to the ontological changes involved in gifts than “I hereby give you my bike”.

Fifthly, the two views differ in their conception of the illocutionary force of the utterances (how that utterance should be interpretedFootnote ⁶⁴) through which gifts are made. Whereas the intuitive view refers to the illocutionary force of the utterance as to give, the OVG takes it to be to make someone the new owner of something. To my knowledge, there is no single English term for that illocutionary force – a noteworthy lacuna given the use of “appropriation” for the act of making oneself the new owner of a thing.

While all these differences vindicate the OVG, indeed revealing its greater accuracy, a proponent of the OVG also faces additional challenges from which advocates of the intuitive view are spared. In particular, if the illocutionary force of a gift is, as the OVG has it, the making of someone else the owner of a thing, it is presumably an act that has the effect of altering the deontic status of both the gifter (who loses the ownership of the thing and property rights over that thing) and the giftee (who correlatively acquires both). Following Reinach, we may refer to “the jural power to produce, modify, etc. rights and obligations through his own social acts” and the “natural ability” to, say, hand over something to someone.Footnote ⁶⁵ The proponent of the OVG is expected to specify who has the related jural power to make someone the owner of a thing, and also which social/illocutionary act that person has to perform to that jural effect. The OVG will readily provide the requested clarifications as follows. For X (the gifter) to have the jural power to make Y (the giftee) the new owner of a, it needs to be the case that:

1. [1] X is the owner of a.

2. [2] X transfers ownership of a to Y.

Both requirements are commonsensical. In his entry “Speech Act” of the Stanford Encyclopedia of Philosophy,Footnote ⁶⁶ Mitchell Green gives voice to [1] when he points to the “preparatory conditions” that must be met for the speech to not misfire, illustrated by the case of a person who “cannot bequeath an object unless she already owns it”.Footnote ⁶⁷ As far as the role of transfer in gift, it is widely recognized among legal theorists.Footnote ⁶⁸ However, although scholars correctly point to the role of transfer in gifts, they fail to notice, let alone think through, as Reinach does, the ontological change and deontic aspects that transfers of ownership have the power to bring about.

First, the ontological change realized by a transfer of ownership is “to change the relation of belonging by changing its bearer”.Footnote ⁶⁹ The content of the transfer – what is transferred – need not be an ownership relation. A transfer can, alternatively or additionally, bear on property rights, on a relative obligation, on a claim or on a jural power. In each case, however, the act of transfer is such that, as Edmund Husserl puts it, “through it” an entity “passes from one person to another”.Footnote ⁷⁰ In other words, a transfer unfolds in such a way that at the beginning the transferor has the entity and the transferee does not have it, whereas at the end, the transferee has the entity and the transferor does not.Footnote ⁷¹

Secondly, both legal scholars and speech act theorists who reflect on gifts fail to register that “[t]he transferring of [ownership] also presupposes a power to transfer insofar as owning essentially implies the right to deal in any and every way with the thing, the power to transfer the thing into the ownership of others is contained in this right”.Footnote ⁷² The power (or right) to transfer ownership is just one of the “absolute rights” that the ownership relation, in virtue of its nature, confers to owners. “It is grounded in the essence of owning”, Reinach claims, “that the owner has the absolute right to deal in any way he likes with the thing which belongs to him”.Footnote ⁷³ The jural powers grounded in ownership stand in contrast to the jural powers that have their source “in the person as such”.Footnote ⁷⁴ Following Kevin Mulligan, the distinction between those jural powers that are grounded in ownership and those that have their source in personhood may be further explicated as follows. While being a person is all that is needed for having the jural power to “apologize, promise, accept promises, order, ask questions, answer questions, inform, grant, request, submit himself, thank”,Footnote ⁷⁵ merely being a person does not suffice for being endowed with the jural powers to condemn, to declare (war), to baptize, to dissolve the government or to petition for bankruptcy. Likewise, I submit, being a (thin) person does not suffice for having the jural power to transfer to someone the ownership of a thing. Only those (thick) persons who have the ownership of that thing in the first place have the jural power to transfer its ownership to someone else. By extension, one may say that gifters do not have the power to make a gift of a thing they do not own. Speech act theorists, such as Hancher, point to the “commissive” dimension of gifts,Footnote ⁷⁶ suggesting that utterances such as “Have some wine” commit the gifter to making what is gifted readily available. However, it may now appear that the March Hare’s misfired gift to Alice could instead be a matter of the March Hare not having the jural power of gifting the wine to Alice.

Because the OVG confines the category of gift to the transfer of ownership, it conceptually rules out the gifts of stolen things. Approached in consideration of Reinach’s distinction between ownership and possession, the gifts of stolen things would correspond to the case where what is transferred is the possession of a thing. Someone who has stolen a bike possesses the bike without owning it. She can transfer the possession of the bike to someone else without thus transferring the ownership of the bike. If Julie steals John’s bike, Julie possesses it while John still owns it although he has lost the power to use it. Julie can then transfer her possession of John’s bike. Paul is now the new possessor of the motorcycle, while John remains its owner. Now the pressing question is: Has Julie gifted John’s bike? The answer to that question is not entirely clear and depends on whether a transfer of possession that is dissociated from a transfer of ownership can have the illocutionary force of a gift. I shall point to two implausible implications as decisive considerations in support of ruling out the related case. First, it would entail that the recipient of the gift possesses that which she is gifted without being further endowed with its ownership or with the property rights to use the thing. While the recipient would be able to make use of the thing, she would not have the property rights to act accordingly.

It is time to recap the sequences that, on the OVG, unfold in many central cases. For X (a gifter) to gift her a to Y (the giftee), it needs to be the case that:

1. (i) X initially owns a.

2. (ii) X utters, either implicitly or explicitly: “I hereby transfer the ownership of a to Y”.

3. (iii) Y hears and understands X’s utterance.

4. (iv) Y does not decline the transfer of ownership.

5. (v) As the result of (i)–(iv), Y becomes the new owner of a.

The OVG, as it is outlined here, may appear to achieve generality at the cost of being at odds with the intuitive understanding of the act. One may object that it is at odds with the ordinary use of the term “gift” which does bear on things, not on their ownership, let alone a relation between someone and a thing. However, the OVG does not conflict with the widespread view that the objects of gifts are things. It really is the bike (not its ownership) that I bring to you as a gift. The rectification that the OVG urges to make regards technical aspects of gifts. In particular, the OVG presses for reconsidering the illocutionary act by which a gift is done in terms of a transfer of ownership from oneself to the recipient of that gift. The OVG also presses for reconsidering the illocutionary force of a gift as making someone the new owner of a thing.

10.5 Jeremy Waldron’s Encounter: How to Make Gifts by Waiving Ownership

Jeremy Waldron also purports to define “what charityFootnote ⁷⁷ is and what it involves”.Footnote ⁷⁸ Waldron intends to refute both the view “that charity involves a positive act of assistance”Footnote ⁷⁹ and the correlated claim that “withholding charity can be seen as an omission – a mere failure to act”.Footnote ⁸⁰ As he notes, “[t]his image of charity derives from the old biblical story of the Good Samaritan”, the latter being usually seen as actively doing what is needed to rescue the man. In the biblical story, “charity means putting oneself out, actively intervening for someone else’s benefits”.Footnote ⁸¹ As a plausible alternative, Waldron proposes “a different image of charity” as being achieved “by doing nothing”Footnote ⁸² (or almost nothing, as I will shortly explain).

Waldron tells two variants of the biblical story. In the first, two bad Samaritans actively prevent some weary travelers from helping themselves to the foods displayed on a table in their house. In the second version, one good Samaritan inactively lets weary travelers help themselves to the food. What the latter version reveals, Waldron argues, is that charity can consist in “passively allowing another to help himself to the resources”:Footnote ⁸³

The central claim here is that waiving property rights over something (in the present case, a typewriter) suffices for giving it to someone just in case the latter is able to help himself to, or is already in possession of, the thing. The conception of gift defended here advances two requirements. One is the “waiving of property rights”, which Waldron correctly conceives as being performed in the mere uttering “Keep it – it’s yours”. The other requirement is on the recipient of the gift, who is expected all by herself to enter into possession of that which is gifted.

According to Waldron, the originality of this conception is that it dispenses with the physical acts (such as “putting myself out for your sake”) which, on a more conventional conception, are necessary for making a gift. From this perspective, Waldron seems to endorse a version of the OVG presented in Section 10.4. However, Waldron’s view does depart from the OVG when, instead of a transfer of property rights,Footnote ⁸⁵ it puts forth a waiving of these property rights as the act by which the change of ownership is brought about.

Waldron is right to note that the mere waiving of property rights does not suffice for making anyone the bearer of these property rights. Waiving property rights over a leaves a un-owned. Waldron is also right to claim that entering into a relation of possession with something can in itself create an ownership relation with that thing. However, Waldron is wrong to infer that the performance of these two amalgamated acts – a waiving on one side matched by an act of appropriation on the other – amounts to the making of a gift. Reinach’s insights about the social/illocutionary act of waiving can be mobilized to explain why it is so. Waiving, as Reinach notes, is “a social act which lacks the moment of other-directedness. Waiving refers merely to that which is waived, in this case to the claim; it is not directed to a person”.Footnote ⁸⁶ Waiving, like declaring, revoking and enacting, belongs to the sub-category of social acts which are not other-directed. In support of that observation, one may note that the following sentence:

1. [d] “I hereby waive my property right over that thing to you.”

does not sound correct. The important point is that if a waiving is not other-directed, the act fails to display the other-directedness that is essential to gifts: the fact that the propositional content of the sentence through which a gift is made always refers to the recipients of that gift.

Although a gift cannot be done by merely waiving a property right over a thing, the social/illocutionary act of waiving can be involved in genuine cases of gift. Consider the case of Julie who promises to give Paul her bike if he gives her CHF100. Julie’s conditional promise is a defining feature of economic exchanges.Footnote ⁸⁷ Suppose that Paul gives to Julie the requested amount and then changes his mind: he no longer wants to buy Julie’s bike and is also willing to not ask Julie to give him back the CHF100 that he transferred to her. Maybe Paul has been told that Julie put her bike on sale because she urgently needs the money. Because Paul wants to be kind to Julie, he is now disposed to gift her the CHF100 which he initially transferred in exchange for the bike. What Paul can do (and this is, in fact, the only thing he can do) so that Julie has the right to keep both his money and her bike is to waive his claim over Julie’s bike.

The fictitious example described here illustrates a way of making a gift other than by transferring the ownership of the thing that is gifted. Paul has already transferred the CHF100 to Julie, but the transfer was done in the context of an economic exchange between the two. The ownership of the CHF100 was shifted to Julie when she and Paul were still engaged in buying and selling each other’s goods. What makes the case tricky is that Paul makes Julie the new owner of his CHF100 not by transferring to her his ownership over the money, but by waiving his claim over Julie’s bike. The money is what Paul gifts to Julie. But the social/illocutionary act that Paul performs in order to gift the money to Julie is to waive his claim over Julie’s bike. It is a case of an economic exchange that evolves into a case of gifts as the effect of a social/illocutionary act, namely a waiving of a claim, that modifies the nature of the interaction. It is a case in which a buyer (Paul) takes the role of a gifter while the seller (Julie) becomes ipso facto the beneficiary of a gift.

10.6 Conclusion

This chapter is a follow-up to dispersed and occasional remarks on gifts that speech act theorists have made. Far from having the ambition to be a speech act theory of gifts, the upshots of the present inquiry can nonetheless be assembled in the form of a (non-exhaustive and provisional) list of conditions for the (illocutionary-)making of gifts. It is time to recap the main findings and also to gesture at some of the issues that a full-blown speech act theory of gifts would have to tackle.

I have first shown that a gift has not been made if the giftee has not grasped the utterance through which it is made. Strawson may have been misled by the other-directedness of the writing of a will that is never read into supposing that it is a bona fide instance of a speech act. While the orthodox view about the utterance being essential to the illocutionary act remains unchallenged, it is not entirely clear, as Maryam Ebrahimi Dinani rightly points out, what from Reinach’s perspective “the general requirement of grasp” precisely means.Footnote ⁸⁸ In the case of gifts, it is an interesting question to ask the extent of the understanding that is implied in the grasping. While it seems reasonable to require that the addressee understands the nature of the act (as an instance of a gift) as well as the role (that of its recipient) she is ascribed in the act, it is less clear whether the addressee is also further expected to grasp the nature of the social/illocutionary act (an act of transfer) performed and also the illocutionary force of the utterance (making her a new owner) through which the act is made. What knowledge of these various hidden aspects of the gift should be expected on the part of the addressee? The level of understanding that the general requirement of grasp presupposes needs to be specified to avoid a theory of gift that is too cognitively demanding, because it is at odds with the intuitive, pre-theoretical understanding of the act that manifestly suffices for its successful performance.

A second result of the inquiry is that a gift may not be the “bilateral act” that Austin has in mind if its acceptance, in the form of a social/illocutionary act, is superfluous, as I have argued. Granted: the intended recipient of a gift has the option to prevent the act from being completed. However, if this is what is at stake, the option can be chosen simply by declining the gift in the relevant circumstance. It seems unnecessary, I have argued, that the recipient also does her part of the act, as it were, by accepting the gift in the alternative circumstance where she wants it.

There is another reason for rejecting the requirement of acceptance. It tends to confound what is fundamentally a single act with a collective one. The way the giftee is essential to the act of gifting is not by co-performing the act, but simply by uptaking it. The utterance through which the gifter makes a gift has to be heard and understood by the giftee, but the gifter is the only agent making that gift.Footnote ⁸⁹ Thus, although a gift involves two persons, it remains the act of one person only. There is no we-gift, only an I-gift matched by a You-uptake.

Finally, it is a third result of the inquiry to press for a shift of focus from the thing that is the object of the gift to the ownership over that thing that is transferred to the giftee. The merits of the shift of attention are threefold: to lay bare the metaphysical underpinning of the act, to confront us with its conceptual boundaries, and to accommodate a greater range of cases. The unexpected variety of gifts is maybe the most striking result of the present inquiry. To gift my bike to you, I can either transfer its ownership to you, grant you the right to revoke your promise to pay for it or waive the right I have over the amount of money you owe me. One can also suppose that the actual diversity of the act is not fully laid bare by these three sub-cases, and therefore the subject matter warrants further exploration.Footnote ⁹⁰

11.1 Introduction

Promises are ubiquitous in our social life: we plan our conduct based on the promises that we make and those addressed to us. We build our reputation on the promises we honor. We blame those who do not fulfil their promises, and we apologize if we are not able to deliver what we promised. The concept of a promise is also of crucial importance to disciplines such as law and economics, as promises arguably lie at the heart of contracts and economic exchanges.Footnote ¹

Given the pervasiveness of promises in our social world, it should not be surprising if they come in many shapes and forms. In line with considerations about promises developed by Adolf ReinachFootnote ² and Margaret Gilbert,Footnote ³ this paper focuses on the “informal” or “everyday” sense of promise according to which, if something qualifies as a promise, it imposes an obligation on the promisor and an equivalent claim (or: demand-right) on the promisee, regardless of whether or not the speaker uses the term “promise.”Footnote ⁴ One key question for any theory of promises, so understood, is: how do promises generate obligations and claims? This chapter addresses this question by comparing Gilbert’s theory of promise with the remarkably similar, and yet importantly different account developed by Reinach at the start of the twentieth century. This is the plan ahead.

In Section 11.2, we present Gilbert’s background motivations for her account of promises. The account aims at vindicating two intuitions about promises and at rejecting three “dogmas,” which she identifies as core to contemporary debates about promises. In this section we also show that Reinach warmheartedly shares Gilbert’s intuitions and that therefore he, too, rebuts the three dogmas.

In Section 11.3, we introduce Gilbert’s account of promises. According to her view, promissory obligations and claims are brought about by certain commitments that promisor and promisee jointly enter. Hence, the reason why promises generate claims and obligations is that promises are to be explained in terms of joint commitments, and joint commitments generate claims and obligations.

Sections 11.4 to 11.6 marshal ideas borrowed from Reinach’s theory of promise to reject the account: while endorsing Gilbert’s background motivations, Reinach’s theory rejects the possibility for promises to have a (or any) substantive explanation and, thus, provides reasons for dismissing Gilbert’s positive account of promise in terms of joint commitments. In particular, Section 11.4 argues, contra Gilbert, that promises do not necessarily require acceptance. Section 11.5 claims that Gilbert’s account misidentifies the authors of promises and Section 11.6 that it misconstrues the content of promises.

While the result of our discussion is mainly negative, Section 11.7 maintains that Gilbert’s research program of understanding the capacity of promises to generate claims and obligations without falling prey to the three dogmas remains wide open. We suggest that progress in this research program can be achieved by taking seriously Reinach’s idea that the search for a substantive explanation of the fact that promises generate claims and obligations is pointless and that promises generate those normative entities in virtue of their nature or essence.Footnote ⁵

11.2 Three Dogmas vs. Two Intuitions

Three dogmas, according to Gilbert, steer contemporary debate about promising: the Moral Requirement dogma, the No Willing dogma, and the Immoral Promises dogma.Footnote ⁶

The Moral Requirement dogma goes back at least to Thomas Scanlon’s understanding of promissory obligations: “When promises give rise to […] obligation, these can be accounted for on the basis of general moral principles.”Footnote ⁷ Scanlon’s idea is that honoring a promise is dictated by a moral requirement, which derives from moral principle(s) and that these moral principles do not depend on contingent agreements or other conventional arrangements among people.

The Moral Requirement dogma, Gilbert argues, is the most important among the three assumptions because it directly sustains the other two, as we will soon see.

The second dogma, called “No Willing” dogma, is expressed in Hume’s notorious passage “‘Tis impossible that we could ever will a new obligation,”Footnote ⁸ which can be reformulated this way:

In a nutshell, this dogma captures the idea that a personal (private or inner) act of the will does not have the normative power to generate an obligation. The Moral Requirement dogma and the No Willing dogma are related: given that the obligation to honor a promise is a moral requirement and given that moral requirements are not grounded in voluntary agreements or arrangements among people, mere acts of the will cannot bring about promissory obligations. Finally, we have the

Gilbert argues that this third dogma, too, gains persuasive force from the Moral Requirement dogma. For, if promissory obligations are moral requirements, then promises with an immoral content do not generate obligations. The moral requirement the promisor is actually subject to is not to keep immoral promises.

Gilbert contrasts these dogmas with two intuitions. The first intuition is what she calls “Inevitability Point.”Footnote ⁹ This point relates to Prichard’s view that “[o]nce call some act a promise [sic], and all question of whether there is an obligation to do it seems to have vanished.”Footnote ¹⁰ She formulates the intuition as follows:

Reinach concurs: “The promising produces a unique bond between two persons in virtue of which the one person […] can claim something and the other is obliged to perform it or to grant it.”Footnote ¹² So, Reinach agrees with Gilbert that promises inevitably generate obligations. However, it is worth noting that Reinach here goes beyond Gilbert’s “inevitability point” as stated above, for her “point” does not state that the noted obligation correlates with a claim. However, we will soon see that, for Gilbert too, promissory obligations correlate with claims (or demand-rights).

The Inevitability Point, Gilbert adds, is something that is known a priori.Footnote ¹³ Reinach, again, agrees: “[…] claim and obligation are grounded with essential necessity in the act of promising as such.”Footnote ¹⁴ It is noteworthy that this last point can have two different readings: a strong and a weak one. The weak reading is this:

Yet, Gilbert and Reinach both insist that only the strong reading properly captures our intuitions on this matter:

They are not claiming that one is obliged to keep one’s promises, no matter what. Their position tacitly builds on the distinction between pro tanto and pro toto obligations.Footnote ¹⁵ Pro toto obligations are resultant or all things considered obligations: these are obligations which result from weighing all – possibly conflicting – pro tanto obligations that are attached to one and the same action.Footnote ¹⁶ Promissory obligations may conflict with and be overrun by other obligations, and then be contrary to resultant or pro toto obligations.Footnote ¹⁷ Against this backdrop, Gilbert and Reinach’s strong reading of the Inevitability Point is that an obligation is necessarily brought to existence by the promise, but this obligation is only pro tanto, so that it may conflict with and be overrun by other obligations.

On this strong reading, the Inevitability Point is incompatible with the Immoral Promises dogma. For, if promises always generate obligations, then so do immoral promises, contra the Immoral Promises dogma. Furthermore, this suggests, contra the Moral Requirement dogma, that promissory obligations are not moral obligations because moral principles cannot generate obligations with morally heinous content.

The second intuition Gilbert endorses is that promissory obligations are relational, that is, they are directed at somebody else: the promisee. Gilbert captures this idea by talking of “directed” obligations and “directed” claims (or “demand-rights”Footnote ¹⁸): it is because the promisor’s obligation is directed to the promisee that the promisee (and only them) have the “standing to demand” the promised action of the promisor. If Laura has an obligation to Sam to call him, then Sam can authoritatively demand of Laura that she call him. In a certain sense, Laura owes it to Sam to call him, and Sam therefore has the standing to demand that of her: if Laura does not do that, Sam is in a position to rebuke her. This suggests that any promissory obligation of the promisor, in virtue of its directedness, is equivalent to a promisee’s claim against the promisor:

The relationality of obligations and claims also is at the core of Reinach’s theory: “There […] exists a correlativity between [promissory] claim and obligation: each has identically the same content, and the relations of bearer and partner are mutually interwoven according to strict apriori law.”Footnote ¹⁹

This second intuition is in tension with the Moral Requirement dogma because it assigns a particular standing to the promisee, which the Moral Requirement dogma is not able to accommodate. Why? Recall that, according to the Moral Requirement dogma, promissory obligations are moral requirements.Footnote ²⁰ When a moral requirement is violated, everybody has the same “standing to demand compliance, if anyone does.” If so, the Moral Requirement dogma leaves unexplained Laura’s special standing towards Sam, which is captured by the idea that Sam has an obligation directed towards Laura (and, conversely, Laura has a claim that is directed towards Sam).

The interim conclusion of this discussion is that the two intuitions put unsurmountable pressure on the Moral Requirement dogma. In addition, given that the No Willing dogma and the Immoral Promises dogma are directly supported by the Moral Requirement dogma, if this goes, they too stand on shaky ground. Gilbert and Reinach agree on all this: a good account of promises should preserve the two intuitions and reject the three dogmas. Put differently: promises are intentional acts,Footnote ²¹ which necessarily give rise to nonmoral, relational claims and obligations. They part ways, however, when it comes to the positive account of promises.

11.3 The Joint Commitment Account of Promising

Endorsing the two intuitions and, thus, rejecting the three dogmas leaves one with the proverbial elephant in the room: if promissory obligations necessarily arise from promises, though not in virtue of some moral principles, how do promises bring them about? To provide an answer to the question, Gilbert introduces her joint commitment account of promises:Footnote ²²

Promises are accounted for in terms of (joint) commitments. What are commitments? Although “committing oneself” has a psychological connotation, on Gilbert’s understanding, commitments – personal or joint – are normative, nonpsychological phenomena.Footnote ²⁴ The psychological process of committing oneself should not be conflated with its normative product: “to commit” and “committing” are psychological; “to be committed” and “commitment” are normative.Footnote ²⁵

Against this background, personal commitments are normative phenomena created by acts of the individual will, namely intentions or decisions.Footnote ²⁶ In this sense, commitments are “creatures of the will.”Footnote ²⁷ Although normative, no moral valence is attached to commitments: “[t]o commit oneself [in this sense] is to make it the case that one has sufficient reason to do a certain thing.”Footnote ²⁸ If Laura decides to kill Sam, Laura now has a sufficient reason to do so because her decision has brought about a personal commitment, independently of its immoral content. (One could add that the commitment at stake is pro tanto, given that other reasons, and especially moral reasons, which may speak against the action, accrue to her.) Importantly, a personal commitment can be reneged on by its very bearer solo, as it were. Changing one’s mind is a personal affair, which may be difficult and may come with psychological costs, but which is possible without the subject consulting with anybody else. Yet, this very possibility is precluded when it comes to joint commitments. Why is that and, more generally, what are joint commitments?

A joint commitment is one commitment (not a combination of commitments) of two or more persons by these two or more persons. Roughly put, the form of joint commitments is this: “A and B are jointly committed to φ as a body” (where φ is an agential or psychological predicate). A joint commitment is brought about when individuals express their readiness for a particular joint commitment with one another, under conditions of common knowledge.Footnote ²⁹ Importantly, “expressing readiness” should be understood as “expressing that state of [the] will that is readiness […].”Footnote ³⁰ Imagine Laura telling Sam “should we go for a walk?” and Sam “sure, lets!”Footnote ³¹ In this case, Laura and Sam have expressed, under conditions of common knowledge, their relevant states of the will that is each one’s readiness jointly to commit to taking up as a body the goal of going for a walk. They are, therefore, jointly committed to doing so. Thus, in the same way in which personal decisions create personal commitments, so expressions of states of the will that are readiness to jointly commit (under conditions of common knowledge) create joint commitments. A joint commitment (just as with a personal commitment) provides each of the parties sufficient reason to conform to it: “If […] one is jointly committed […], [o]ne therefore has sufficient reason for performing actions that conform to the commitment, sufficient reason that is independent of one’s inclinations and self-interest.” Interestingly, Gilbert continues by stating that: “in the case of a personal decision, intention, and so on, the normative force of this commitment can be eradicated by one’s own fiat. Failing special background understandings, that is not so in [the] case [of joint commitment].”Footnote ³²

So, joint commitments, in contrast to personal commitments, cannot be rescinded by a single party unilaterally (barring special background understandings). Why? Because a joint commitment, Gilbert claims, creates a set of directed obligations and correlative rights. These obligations and rights block the possibility for a single individual to renege on a joint commitment unilaterally. Put another way, each party of a joint commitment not only is obligated to the others to conform to the commitment, they can also authoritatively demand conforming actions of the others. Note that these obligations and rights are content-independent, meaning that they are not moral and do not derive from moral principles. As long as a joint commitment is in place, corresponding obligations and rights arise, regardless of the moral content of that commitment.

Before assessing the joint commitment of promises, three clarifications are in order.

First, Gilbert’s position on what X and Y are committed to, when X makes a promise to Y, has evolved through time. In a former version of her theory,Footnote ³³ X are Y are held to be jointly committed to the decision that X performs a certain action. In the last version presented here,Footnote ³⁴ X are Y are jointly committed to an action plan that specifies an action of X. While the distinction between commitment to decisions to act and commitment to plans to act matters in various respects, we shall consider the two versions of theory to be equivalent for the purposes of our paper given that our objections do not hang on that point.

Second, it should be stressed that, despite its name, the joint commitment account does not equate promises with joint commitments. As we have seen, commitments are normative phenomena that ensue from the persons’ acts of committing. The distinction between the joint commitment and the actions of X and Y that give rise to it is reflected in the use of the present and past tense in Gilbert’s definition. This is perhaps more easily seen in Gilbert’s earlier formulation of her view:

We infer from this that, on the joint commitment account, making a promise consists in the acts of jointly committing, not in the (normative) state of being jointly committed.

Thirdly, a clarification about the notion of “jointly committing” is in order. The acts of jointly committing mentioned in Gilbert’s account of promises must not, on pain of circularity, be understood as joint actions in a collective sense, according to which an action is joint if it is performed upon a shared intention.Footnote ³⁶ For her notion of shared intention is explained by that of joint commitment: in brief, the intention to φ is shared by X and Y iff X and Y are jointly committed to intend as a body to φ.Footnote ³⁷ So, if joint commitment were created by joint acts of committing (in the collective understanding of “joint acts,” which presupposes shared intentions), then her theory would become vulnerable to a charge of circularity. Therefore, the appeal to the notion of “jointly committing” in her account should be read in the noncollective (or “distributive”) sense, according to which X’s act of expressing personal readiness for the joint commitment in question and Y’s act of expressing personal readiness for the same joint commitment do not presuppose X and Y’s shared intention to perform the relevant acts. Once the necessary expressions have been made under condition of common knowledge, then the joint commitment will be in place, as is understood by the parties.

We now have all the elements required to appreciate Gilbert’s account of promises. Laura’s promise to Sam to call him later is Laura and Sam’s joint commitment to decide or endorse as a body the plan that Laura calls Sam later (a joint plan arrived at by a particular process e.g., Laura’s saying “I promise…” and Sam offering an accepting response; on such a “response” more later).

Why should one favor the joint commitment account of promises? Gilbert gives four arguments in its support.

1. 1. The first argument is that the joint commitment account vindicates the two intuitions. Thus, the account explains why a promise necessarily generates an obligation and why that obligation is relational.

2. 2. Second, the joint commitment account jettisons the three dogmas. It rejects the Moral Requirement dogma because no moral principle is appealed to in order to explain the pro tanto obligation of a promisor to perform the promise. The No Willing dogma is also dismissed: while the obligation, as a matter of fact, is willed into existence, but its creation does not happen merely in virtue of the individual will of the promisor, but in virtue of two individual wills.Footnote ³⁸ Finally, the Immoral Promises dogma, too, is subject to rejection: promissory obligations are content-independent, which means that, regardless of their content, they are brought into being by the joint commitment.

Gilbert adds what in her eyes constitutes two further advantages of her view:

1. 3. If promises are joint commitments to the decision that the promisor φs, then the jointness of that commitment requires that not only the promisor, but also the promisee, is active in a certain sense. This conforms to our intuitions, according to Gilbert, so that: “one point in favor of the joint commitment account of promises is that […] the promisee must do something of an accepting rather than a rejecting nature”Footnote ³⁹ (note that acceptance does not have to be verbal, but it is not mere uptake or acknowledgmentFootnote ⁴⁰).

2. 4. Finally, Gilbert claims that her view entails that, when a promise is made, not only the promisor but also the promisee takes on some obligation (whose content is not specified in the content of the promise). She takes this to be a welcome consequence of her account, which again is supposed to conform to our intuition: imagine Laura promises to call Sam on the phone, Sam accepts that, but then he takes his phone off the hook. On Gilbert’s account, Laura can rebuke Sam authoritatively because Sam has the obligation to Laura not to make her calling him impossible.Footnote ⁴¹ Since joint commitments generate both obligations and rights, on each of its parties, this intuition is also explained by the account.

In the next three sections, we mount several objections against Gilbert’s theory of promises. These objections are grounded in elements of Reinach’s theory of promises. While we flag these elements by referring to Reinach’s text, our objections are substantive, rather than historical or exegetical.

11.4 First Objection: Acceptance

One important element in Gilbert’s theory of promises, which has been mentioned only briefly in the previous sections is this: “[p]romising,” she writes, “is understood to include whatever is necessary to supplement the actions of the promisor in order to complete the promise; this […] includes the promisee’s acceptance.”Footnote ⁴² Gilbert specifies that acceptance is a kind of concurrence as opposed to mere acknowledgment: “if Jeremy were to make a prediction, such as ‘I think I’ll be calling you tonight, it’s going to be hard being home alone,’ Julia might respond with ‘I hear you.’ This would be a case of acknowledgment without acceptance in the sense at issue.”Footnote ⁴³ However, Gilbert otherwise does not elaborate extensively on the credentials of this act. In this section, we follow Reinach in canvassing various senses of “acceptance” and show that none of them are necessary for the promise.Footnote ⁴⁴

First, “acceptance” could point to (1) an act of inner assent, which can be described as the experience of saying “yes” to a certain content that p as contrasted with the experience of merely entertaining the content that p or refusing it. The specific credentials of this act (e.g., whether it is a dispositional belief or an episodic action) are not of interest for our present purposes. What is important, though, is that this act (just as beliefs and other mental actions) is internal in the sense that it does not stand under the requirement of being expressed to others.

The second sense of acceptance (2) discussed by Reinach is the – nonintentional and noncommunicative – expression of (1), for example, nodding while reading a contract we are asked to sign. This sense of acceptance bears little or no relevance to our discussion, which is why we won’t dwell on it, but it allows us to distinguish a third sense of acceptance, which is (3) the intentional act of informing somebody about one’s acceptance of p in the sense of (1). In contrast to (2), (3) demands an addressee: informing your colleague that you have accepted the contract is an intentional act, which has to be distinguished from your (nonintentional) nodding in the presence of the colleague.

The fourth act is a sui generis intentional social or speech act of acceptance (4), which is performed, for example, when one accepts the contract by saying “I hereby accept the terms of the contract.” One might wonder whether (3) genuinely differs from (4). The following consideration shows that it does: while (3), in principle, can be addressed to anybody, (4) can be addressed sensibly only to the relevant person in the relevant given communicative situation: while one can inform their colleague about their inner assent to the contract, one cannot accept the contract in front of their colleague (in the fourth sense), unless they are or represent the other party of the contract. Furthermore, (3) can be repeated ad libitum, but (4) can meaningfully and efficaciously be performed only once. Finally, (3) can be made in the present, past or future tense (“[I inform you that] I have accepted” or “I accept” or “I will accept the contract”), but (4) admits only of the present tense.

Is acceptance in at least one of these four senses necessary for promises? Start with the first sense of acceptance. Inner assent, it can be contended, is irrelevant to promises: We have seen that the No Willing dogma declares mere internal willing unable to alter the space of interpersonal normative reasons, that is, to bring about normative entities like directed obligations or claims. But if mere internal willing does not have that power, neither does inner assent insofar as it is a personal (private and internal) act. Interpersonal reasons are just not the kind of entities that are created by individual and internal acts, be they acts of the will or of inner assent.

Since acceptance in the second sense merely is the nonintentional expression of (1), the inner assent’s irrelevance to promises extends to (2) as well. Hence, promises’ capacity to generate relational obligations and rights does not hinge on nonintentional expressions of inner acts. More importantly, it does not hinge on the intentional expression of internal assent either (in the sense of (3)). To see why, consider these two ideas. First, one can inform anybody about their assenting to a promise, but that does not amount to accepting the promise in the sense at stake here. Suppose Laura promises to Sam: “I will call you this afternoon!” and Sam, unbeknownst to Laura, informs Pam that he has assented to Laura’s promise. While one can grant a sense in which Sam, towards Pam, has “accepted” Laura’s promise and while this might have repercussions in the normative relations between Sam and Pam, no normative relation between Laura and Sam has been established by Sam’s act of informing Pam about his assent. Because of that, this act is not relevant to promises. Second, the promisee can inform the promisor of their assent. Admittedly, this act can be confused with the proper act of acceptance. However, its linguistic expression will help disambiguate the communicative situation. If the subject’s utterance is in the past or in the future tense (“I have assented to your promise” or “I will assent to your promise”), chances are that they are merely informing the promisor about their inner act. The same consideration holds if they repeat their utterance several times. In these cases, the promisor is likely to request clarification on what the promisee is doing. But no such request will be raised if the promisee’s utterance is in the present tense and/or if they complement it with relevant adverbs like “hereby.”Footnote ⁴⁵ For these are linguistic signals that the promisee is performing a genuine act of acceptance.

Is acceptance qua specific intentional speech or social act different from (1)–(3) necessary for promises? Sometimes, this act is indeed required. Imagine Laura telling Sam: “I will call you, only in case you agree,” and Sam replying: “I hereby agree.” Laura is here issuing a conditional promise: its efficaciousness is contingent on an event, which is Sam’s act of acceptance – in the fourth sense illustrated above. For the promissory obligation to get off the ground, Sam has to accept Laura’s promise by performing an intentional act of a specific kind. (In this particular case, the promise is contingent on an act of acceptance, but promises could be made contingent on all sort of events: for example, “if it rains, I promise I’ll bring the dog for a walk.”)

However, not all promises are conditional. Imagine Laura who struggles to keep up with her jogging schedule. To motivate herself, she tells Sam, her flatmate, while he is doing the dishes: “I promise to go for a run at 5 pm.” In uttering those words, Laura creates a promissory obligation that motivates her to go for a run at 5 pm. Now, it is true that Laura’s motivation to make the promise is entirely private (she wants to keep her jogging schedule). However, this doesn’t mean that she has not entered a promissory obligation. In fact, the motivational power Laura intends to elicit precisely derives from its relationality: since Laura cannot renege on the obligation unilaterally, she is bound to honor it. The promissory nature of Laura’s obligation can also be inferred by the fact that Sam acquires a content-identical claim. This claim may well have practical insignificance to Sam, but this is not to say that it does not exist. Under specific circumstances, Sam may decide to enforce it. For instance, imagine that Sam schedules an online meeting for 5 pm, which requires the use of Laura’s room. Around that time, he notices that she hasn’t yet prepared for jogging and demands that she honors her commitment to go for a jog. Sam’s demand carries normative force, meaning that if Laura fails to meet it, Sam is entitled to rebuke her. This normative force wouldn’t exist if Laura had merely informed Sam of her intention to go for a jog at 5 pm. Having established all this, let’s go back to Laura’s promise; while Sam is doing the dishes, she tells him: “I promise to go for a run at 5 pm.” Does Sam need to accept the promise in a case like this? No, he can continue doing the dishes without saying a word.Footnote ⁴⁶

For at least some promises, acceptance is therefore not necessary: call these promises “unconditional.” It is true that many promises that are explicitly unconditional appear to be tacitly conditional. So, for example, promises like “I will sell you the house at the best price” or “I will take care of your children for the next three days” are not explicitly formulated in conditional terms, but do require acceptance on the promisee’s end to generate obligations and rights. These observations suggest that conditional promises may be more ubiquitous than usually thought. But this does not imply that all promises are conditional. We surmise that the view that all promises require acceptance stems from a natural, but ultimately overbroad generalization from conditional to unconditional promises.Footnote ⁴⁷

Perhaps acceptance-based accounts of promisesFootnote ⁴⁸ are motivated by a concern to include a mechanism that safeguards the interest of the promisee, for example, in a case where they perceive the promise to endanger them (e.g., the promise of transferring shares in a company that involve liability). Charles Fried writes in this vein: “I admit unease […] about insisting on acceptance in the case where the promise is clearly communicated and where it would be captious to doubt that the promisee is delighted the promise.” But he then continues: “Since […] any putative benefit may in fact be unwanted by a particular (putative) promisee, there must at least be the option to refuse or reject not just the benefit but the promise of the benefit.”Footnote ⁴⁹ We think that the concern is legitimate, but misplaced. For the promisee can avail themself of a mechanism to protect their interest unrelated to acceptance. In fact, the promisee has the power to release: in waiving their claims, they, by the same token, release the promisor of their obligation and make the promise null and void. (As we will see, one of the criticisms we raise in the next section against Gilbert’s theory is that it disavows this power.)

Our interim conclusion is that promising as such does not require acceptance. To dismiss this conclusion, defenders of an acceptance-based account of promises should dismiss the notion of unconditional promise as inconsistent and empty. However, this notion does not involve any internal contradiction and, hence, is not inconsistent. Also, many of our promises do appear to be unconditional.

11.5 Second Objection: The Authors of Promises

We ordinarily think of promises as actions of the promisor. However, the joint commitment account misidentifies the authors of the promises by equating the promisor’s singular act of promising with actions performed by promisor and promisee: “for one person to make a promise to another is for them jointly to commit…”Footnote ⁵⁰ It is true that, on Gilbert’s theory, there is more to promises than that (e.g., appropriate and explicit expressions on the part of promisor and promisee must have occurred). While these details are important to Gilbert’s general account,Footnote ⁵¹ our focus in this section will be restricted to the idea that what appears to be an act of an individual (the promisor’s promising) directed at another (the promisee) turns out to be a plurality of acts of those individuals (the promisor’s and promisee’s committing). This amounts to a strongly revisionary account of the authors of promises.

Note, first, that our point is not that the promisor/promisee asymmetry gets lost on the joint commitment account. It does not: the promisor – not the promisee – figures as the author of the decided action in the content of the decision to which the promisor and the promisee commit. Our point rather is that what distinguishes the promisor from the promisee is not just that the promise bears on the promisor’s action. The distinction between the promisor and the promisee is first and foremost content-independent: the promisor is not only the author of the promised action, he also is the author of the promise (or, as Reinach calls him, the “originator”Footnote ⁵² of the promise). Gilbert’s account fails to capture that aspect of promises.

In answer, Gilbert might simply challenge the notion that promises, as we submitted, are, in fact, ordinarily conceived of as acts of the promisor and not as acts of the promisor and the promisee.Footnote ⁵³ However, the following considerations suggest that that is very much the case indeed:

1. 1. We tend to ascribe the authorship of promises to the promisor alone:

   1. a. Suppose that, after Laura promised Sam to call him, Jim asks Sam: “Did you commit together with Laura to the decision that she will call you?” Sam is likely to answer in the negative: “No – this is Laura’s commitment!” If Laura were asked the same question, a similar answer may be expected – perhaps accompanied by an element of remonstration: “No, what I promise is entirely up to me, why should have I consulted with Sam in advance on what to promise to him?”.

   2. b. Imagine an evil demon announcing that he will kill the first person who makes a promise after t. In a heroic sacrificial act, Sam shouts “I promise never to forget you Laura!”. Should the demon kill them both?

   3. c. A promisor can plan to make a promise, without any uncertainty being caused by the possible lack of cooperation of the promisee. One’s promises are easy to plan, in contrast to agreements and joints actions.

2. 2. The contrast between individual and collective promises (“I promise” vs. “we promise”) is, on the face of it, content-independent:Footnote ⁵⁴ it is simply the contrast between the promise made by a single subject and the promise made by a plurality of subjects. The joint commitment account has to reject this. On the joint commitment account, the difference cannot depend on the number of subjects performing the act (one versus many). Rather, what distinguishes individual from collective promises pertains to their content: individual promises are joint commitments bearing on individual actions, while collective promises are joint commitments bearing on collective actions (more on the content of promises in the next section).

So, the ways in which we conceive of, plan, and evaluate promises converge in showing that promises are acts of the promisor. The joint commitment account is, as mentioned above, robustly revisionary in that respect. Couldn’t Gilbert bite that bullet? We doubt it. First, this revision concerns such a core feature of promises that one may wonder whether an account denying that promises are acts of the promisor can still legitimately claim to be about promises. Second, the revision entails four further problematic consequences to which we now turn.

1. (i) Too many obligations for the promisee. Let us start by formulating a worry concerning the standard obligation of the promisor, that is, the “performance obligation” to act as promised, which is at stake in the Inevitability Point. The worry is this: if X and Y jointly commit to endorse the decision that X will φ, then both X and Y should have an obligation to that effect. However, this is not so in the case of promises.

Gilbert denies that X and Y’s joint commitment entails that performance obligations accrue to both, X and Y: “[…] the only performance obligations associated with a promise X makes to Y are those of X […].”Footnote ⁵⁵ But if the promisee incurs no performance obligation, then we confess to lose grip on the very idea that, when X promises Y to φ, X and Y are jointly committed to endorse the decision that X will φ. That is, we doubt that there is any ordinary notion of joint commitment such that X and Y are jointly committed to an action of X, without Y incurring any (performance) obligation as a result.Footnote ⁵⁶ It just doesn’t seem that Y has committed to anything in such a case.

However, it is important to note that, in denying that X and Y’s joint commitment entails that performance obligations accrue to both X and Y, Gilbert is not denying that other, “ancillary” obligations accrue to the promisee. She writes: “the promisor’s performance obligation is not the only obligation arising, inevitably, in the context of a promise.” What are these obligations? “A promisee’s ancillary obligation,” she continues, “is at a minimum an obligation to his promisor not to act in ways that prevent his promisor from fulfilling the promise.”Footnote ⁵⁷

Does the existence of ancillary obligations deflate our criticism? Let us reply by highlighting that we do not dispute the existence of such ancillary obligations. However, we resist the idea that they are generated by the promise. Instead, we suggest that these obligations are generated by a general moral principle. While the exact formulation of this principle is the topic for another paper, we can state it in a loose manner as follows: one ought not to thwart the realization of somebody else’s intention (barring special circumstances: e.g., if the intention carries a morally heinous content). Since honest promises presuppose the promisor’s intention to perform the promised action, the promisee (and, actually, given the moral nature of the principle at stake: anybody else) ought not thwart the realization of the promisor’s intention (barring special circumstances). So, if Laura promises Sam, in the presence of Robert, that she will meet Sam at the pub at 5 pm, then not only Sam but also Robert should refrain from actions that would hinder Laura from fulfilling her promise.

1. (ii) Loss of power of release for the promisee. A second problematic consequence of the joint commitment account pertains to the rescission of a promise. Gilbert claims that, since not only the promisor, but also the promisee, places himself under an obligation when a promise is performed, then the promisee cannot, on the face of it, unilaterally rescind the promise. This is in contrast with the widely accepted idea that the promisee has a “power of release.”Footnote ⁵⁸ Gilbert offers two replies to alleviate the tension with this widely endorsed idea.

Her first reply is to question the systematic existence of such a power of release. Gilbert suggests that we are under the impression that such a power exists because, in our analyses of promises, we selectively focus on promises that the promisor has no personal desire to perform. These are cases in which the promise has been solicited by the promisee. While looking at this specific class of promises, it may sound plausible that the promisee has a power to release, given that the promisor has no interest in the promise. However, Gilbert claims that if the promisor does have the desire to promise, then the promisor will be justified in resisting the promisee’s attempt to waive their right unilaterally (thereby making the promise null and void). This is the example Gilbert makes to illustrate the point:

We disagree: it seems to us that Jane is very much in a position to do so. We suspect that confusion is at play here between Jane’s rescinding the promise and Jane’s forbidding Joe from returning the book. Of course, Jane is in no position to issue such an interdiction. While Jane’s rescinding of the promise destroys Joe’s obligation to return the book, his permission to do so remains intact.

If you are nonetheless under the impression that Jane is in a position to forbid Joe to return the book, then perhaps, Reinach argues,Footnote ⁶⁰ you conceived of Joe’s “promise” as a promise together with some nonpromissory act. For instance, it might be that by uttering the word “I promise to return your book on Tuesday,” Joe performed not one, but two acts: a promise to return the book and a request to Jane that she accept that he will return the book on Tuesday. Of course, if Jane accedes to the request, she takes on an obligation. This is the obligation to accept that Joe returns the book, and it is one that she cannot revoke unilaterally. While Jane retains the power to waive the claim deriving from Joe’s promise, she cannot exercise that power, given the obligation she entered by accepting Joe’s request. In this scenario, Jane therefore is under an obligation that she cannot rescind, but this is not, as the joint commitment account would have it, because the promisee is tied by the promise that was made to her, but because she is tied by her having accepted the concomitant request of the promisor.

Gilbert’s second reply is to point out that should one insist on the promisee’s power of release, one could modify the joint account so as to accommodate it in the following way: “a promise is a joint decision that one party, ‘the promisor,’ is to do something – a joint decision entered into by an appropriate explicit process – with which is associated the understanding that it stands at the pleasure of the other party – ‘the promisee’.”Footnote ⁶¹ Our reply is that while promisor and promisee may have that understanding and may even render it explicit in the process of making the promise, a great many promises are not associated with that understanding simply because the parties do not possess it. And yet, even in those promises, we would maintain that the power of release accrues to the promisee. So, for example, Laura promises Sam that she will call him at 5 pm. Sam (and, for what it’s worth, Laura too) might not be aware that Sam can release Laura (perhaps they have never reflected on these matters). Yet Sam does possess that power (even though, due to his ignorance on the matter, he will not exercise it). If that is correct, it goes to show that the power of release does not depend on such an understanding.

1. (iii) Too much responsibility for the promisee. Intuitively, the responsibility for a promise accrues to the promisor in a way that does not accrue to the promisee. Thus, in the case of immoral and, especially, unconditional promises, the promisor is blameworthy in a way the promisee is not. Likewise, the promisee does not get any credit for the courageous or generous promises made by the promisor. Since on the joint commitment account both the promisor and the promisee perform the promise together, such asymmetries in responsibility ascription run the risk of getting lost.

Gilbert may reply by relying on the fact that her account does not erase the difference between the promisor and the promisee but traces it back to the content of the joint commitment: the promisor, to recall, is the one whose action figures in the joint commitment. Thus, on the joint commitment account, it may be argued that the promisor incurs the responsibility of the promised action because that action is hers. By extension, if the promised action is immoral, then the promisor – not the promisee – is blameworthy.

However, there are two reasons why such a view fails to capture the relevant asymmetry in responsibility. First, given that both the promisor and the promisee are jointly committed to the decision that the promisor will perform the immoral action, the promisee, on the joint commitment account, should still incur some responsibility for that blameworthy action, should it be performed. But if Sam makes the unconditional promise to Laura to kill a cat for fun, how is Laura even partly responsible if Sam delivers on his promise?Footnote ⁶²

Second, one might be blameworthy (or praiseworthy) for a promise without this deriving from the blameworthiness (or praiseworthiness) of the promised action. Suppose it is forbidden to make promises on Mondays. If Sam nevertheless unconditionally promised to Laura on Monday, Laura does not incur any responsibility for violating the interdiction. However, in such a case the asymmetry in blameworthiness cannot be traced back to the blameworthiness of the promised action. Indeed, the promised action may well not be blameworthy. In such a case, if Sam is blameworthy and Laura is not, this cannot be because they jointly commit a blameworthy action of Sam. In short, differences in blameworthiness of promises cannot always be derived from differences in blameworthiness of promissory contents.

1. (iv) Second-order promises and Euthyphro. Consider this second order promise: Sam promises Laura that he will promise to call her. On the joint commitment account, such a second-order promise amounts to Sam and Laura jointly committing to the decision that Sam will promise to call Laura, which in turn amounts to Sam and Laura jointly committing to the decision that Sam and Laura will jointly commit to the decision that Sam calls Laura. Let us focus on the wide scope, second-order promise. That promise is, ex hypothesis, a promise made by Sam. On the joint commitment account, this should mean that the promise bears on an action by Sam. However, the joint commitment account entails that this is not the case: the content of that second-order joint commitment is an action of Sam and Laura – namely a first-order joint commitment. This highlights that the joint commitment account is in no position to maintain that, with respect to the second-order promise, Sam is the promisor.

The natural reply on behalf of the joint commitment account is that the first-order joint commitment (of Sam and Laura to the decision that Sam will call Laura) is a promise by Sam, because it bears on an action by Sam (calling Laura). If so, the second-order joint commitment bears on an action by Sam – a first-order promise – so that it is itself, in turn, a second-order promise by Sam.

This reply, we submit, brings to the fore how wrong-side-up it is to identify the promisor via the content of the promise.Footnote ⁶³ To determine whether a second-order joint commitment of Sam and Laura corresponds to a promise by Sam, by Laura, or is not a promise, we must look into the content of that second-order order commitment. Since that is another joint commitment, we have to look further and check the content of that first-order commitment. This puts the cart before the horse. We need not know what is promised to determine who has promised. Gilbert is certainly right that our promises necessarily bear on actions of ours. But they are not our promises because they bear on actions of ours. They bear on actions of ours because they are our promises.

For all these reasons we conclude that authorship of promises should not be attributed to both the promisor and the promisee, as entailed by the joint commitment account. We now turn to our third objection to the joint commitment account of promises.

11.6 Third Objection: The Contents of Promises

In this section we argue that the joint commitment account of promises mischaracterizes the contents of promises by equating them with decisions to act (or endorsement of action plans) and not with actions tout court. Remember Gilbert’s account:

On this view, “Laura promised to Sam that she will call him” ought to be paraphrased into “Laura and Sam jointly committed to endorse the plan [or ‘decide’] that Laura calls Sam.”Footnote ⁶⁵ However, what we typically promise is neither to decide to act nor to endorse an action, but to act (sometimes, Reinach argues, the promisor promises results rather than actions – but these results still are results of the promisor’s actionsFootnote ⁶⁶). All in all, Gilbert’s analysans is more complicated than the analysandum in two respects. First, promises – which prima facie are individual acts – are analyzed in terms of a plurality of acts. Second, promises – which prima facie have a first-order content directed at the action of the promisor – are analyzed in terms of committal acts of the will directed at a joint decision to act (or at the joint endorsement of some action plan). A first order individual act is analyzed in terms of a plurality of second order acts.

In principle, one could maintain that promises are in fact more complex than they seem to be by arguing that this complexity is a cost worth paying – for instance, because joint commitments allow analysis of a wide variety of other phenomena, such as agreements. However, we submit that such gains are overridden by substantial costs which, all things considered, should advise us against endorsing the joint commitment account of promises.

To begin with, there is a cost in intuitive simplicity: promises are something else than what they appear to be. Preferring an elaborate account of promises to our intuitive grasp of them stands in tension with Gilbert’s laudable attempt to stick to appearances in other places. For instance, elsewhere she argues against the view that agreements are exchanges of promises by raising the worry that an “agreement, for one, does not look like a pair of promises, mutual, exchanged or whatever.”Footnote ⁶⁷ We agree, but by parity of reasoning, one should also note that promising does not look like jointly committing to a decision to act.

Furthermore, although one chief aim of the joint commitment account is to explain the Inevitability Point (according to which if X promises to φ, then X is, without exception, under the pro tanto obligation to φ), equating promises to joint commitments to a decision to act might be incompatible with that point. To see that, suppose that Laura promises to call Sam. If Laura and Sam are jointly committed as a body to the decision that Sam calls Laura, then it seems that Laura now has an obligation to espouse as a body the decision that Laura calls Sam. If that is the case, Laura will have promised to call Sam without ever having been under the obligation to call Sam (contra the Inevitability Point).

One could object to our reconstruction and note that, in this scenario, Sam and Laura are not committed to decide or endorse as a body the plan that Laura will call Sam, rather they have jointly decided that.Footnote ⁶⁸ Accordingly, neither of them has an obligation to decide anything (unless it is a decision to accord with the joint decision). And since the joint decision has been made, it is incumbent upon Laura to make the call, if she is to accord with the decision they have made. Hence, the theory preserves the Inevitability Point. We welcome the objection because it enables us to specify that our criticism rests on two general assumptions about commitments as such. Below we provide reasons for endorsing these assumptions. Our criticism, therefore, is conditional: if those assumptions are misplaced, it fails.

Our first assumption concerns a general point about commitments, already highlighted in Section 11.4: a commitment (personal or joint) to φ is a sufficient reason for φ-ing (e.g., acting or forming a certain attitude). This goes to show that, at the moment in which the joint commitment has been formed, φ has not yet happened, rather the agents are motivated to make it happen. Note that the creation of the joint commitment might well lead to the immediate realization of its content. Perhaps, this is how joint commitments lead to the formation of, especially, psychological attitudes (in contrast to actions). But our assumption concerns the motivational or normative nature of the relation between the joint commitment and its content, not its temporal determination. It is at least in principle possible for the (personal or joint) committer to disregard the commitment: in this case, the commitment does not necessitate the committer to φ (regardless of the temporal relation that binds the commitment and φ in the case where the committer conducts themselves according to their commitment).

The second assumption relates to the idea, again discussed in Section 11.4, that a joint commitment cannot be unilaterally rescinded because it generates directed obligations and claims on X and Y. As Gilbert writes: “If Anne and Ben are jointly committed to doing something as a body, each owes the other appropriate actions by virtue of their joint commitment.”Footnote ⁶⁹ It stands to reason that these appropriate actions must be in accordance with the joint commitment. Hence, our second assumption here is that the obligations inherit, as it were, the content of the joint commitment. So, e.g., if Anne and Ben have jointly committed to φ, where φ is to climb a mountain together, then each of them has the obligation against the other to climb the mountain (the same, of course, applies to cases where φ is a psychological and not an agentive predicate).

Now, according to Gilbert’s account, Laura has made a promise to Sam to call him if, among other conditions, Laura and Sam are jointly committed to endorse as a body a particular plan of action φ. Based on the first assumption, it seems to follow that the content of the joint commitment is to endorse as a body the particular plan of Laura’s calling Sam. Hence, Laura and Sam have a sufficient reason to endorse as a body that particular plan of action. But this means that the agents are motivated to endorse that plan, which has not yet happened at the moment when they have formed the commitment.

Further, the joint commitment cannot be unilaterally rescinded because Laura and Sam have acquired directed obligations. What is the content of the obligation accrued to the promisor, and in our example, to Laura? Based on our second assumption, this is the same content of the joint commitment. In other words, this is an obligation Laura has against Sam to endorse as a body the particular plan of calling Sam.

If our assumptions are on the right track, then Laura, in promising Sam to call him, acquires the obligation to jointly endorse the plan to call him – she does not acquire the obligation to call him. But then, as we highlight above, this infringes upon the Inevitability Point. Our two assumptions seem to consistently square with the two ideas about commitments and directed obligations presented in Section 11.4. Yet nothing in what we have argued excludes the possibility that that the Joint Commitment Account of Promises can do without the two assumptions. Though doing so, we presume, will come at the cost of revising other principles of the general theory of joint commitments. We won’t explore this possibility, but ask further whether Gilbert’s theory of joint commitments couldn’t be amended (or interpreted) in another way so as to obviate the mischaracterization of the promises’ contents and to salvage the general idea that promises are joint commitments?

Consider the scenario in which a child and their parents, after a disastrous parents–teacher meeting, enter the joint commitment that the child will spend more time doing his homework. This seems to be a case of joint commitment the content of which is the action of only one of the commitment’s parties. Based on this idea, Gilbert’s theory of promises could be revised by now claiming that promises are joint commitments whose content is the promisor’s decision only (and not a joint decision of promisor and promisee): for example, if Laura promises to call Sam, then Laura and Sam jointly commit to Laura’s decision that she calls Sam. The revised version of the account secures the Inevitability Point (Laura’s promise obligates Laura to the decision of calling Sam) and correctly attributes a first-order content to promises, while maintaining that promises are joint commitments.

Unfortunately, this amendment appears to have all the advantages of theft over honest toil (which is why, we presume, Gilbert nowhere hints at this possibility). For one can only commit to what is up to oneself or to what is (on some salient interpretation) under one’s control: actions or attitudes of another are not something one can commit to.Footnote ⁷⁰ Accordingly, the subject of the psychological predicate in the commitment’s content can only be the subject of that very commitment and this holds for both singular and joint commitments. Our joint commitment is a commitment of ours that has an action or an attitude of ours as its content – something that is up to us or stands under our joint control.

If that is correct, then alleged cases of joint commitments which have the action of a committer as their content are not genuinely joint. Going back to the previous example, the putative case of joint commitment that the parents and the child have turns out to be a combination of two different commitments: the child’s commitment to spend more time doing homework and the parents’ commitment that they will do their best to facilitate the child doing their homework. These two commitments have different contents and therefore do not qualify as one joint commitment.

Because it imposes an acceptance-condition on all promises and because it mischaracterizes the author and content of promises, we conclude that the joint commitment account of promises must be rejected. Of course, this result is doomed to reignite the original question: How should one then explain the Inevitability Point? If promissory obligations and claims are not grounded in joint commitments, then what grounds them? While we won’t be able to fully answer these questions in this paper, the next section advances a suggestion on how progress could be made in these matters.

11.7 Gilbert, Reinach, and a Fourth Dogma about Promises

A general consideration shall conclude our assessment of the joint commitment account of promises: in addition to the three dogmas about promises discussed in Section 11.3, we suggest the existence of a fourth dogma. In a nutshell, this dogma assumes that the fact that promises generate claims and obligations calls for a substantive explanation. In order to better clarify what we mean by this “fourth dogma,” it might be helpful to come back to Reinach’s account of promises.

As we have seen, Reinach insists that all promises, including immoral ones, generate pro tanto obligations – this is in accordance with Gilbert’s Inevitability Point (strong reading) as well as with Gilbert’s rejection of the Immoral Promises Dogma. Furthermore, Reinach maintains that promissory claims and obligations are not moral, which is in accordance with Gilbert’s rejection of the Moral Requirement Dogma. Also, Reinach argues that promises are speech acts that bring about obligations – and this, again, is in accordance with Gilbert’s rejection of the No Willing dogma. Finally, Reinach holds that promissory claims and obligations are relational or directed – in accordance with Gilbert’s Directed Obligation. Thus, Reinach and Gilbert independently arrive at the same five key desiderata for an account of promises.Footnote ⁷¹

While one can only be struck by these many affinities, there is one fundamental divergence between the two accounts. Gilbert rejects – correctly, we believe, with Reinach – substantive explanations of the binding character of promises that equate promises to expectation triggers, solicitations of trust, useful social practices, etc., or that appeal to moral constraints. However, she concurs with these accounts of promises in that she accepts that some substantive explanation has to be given as to why promises generate obligations and claims. In fact, her main contribution to the debate is to propose a new explanation that, by accounting for promises in terms of joint commitments, is alternative to those previously theorized.

Reinach, on his part, rejects all substantive explanations of the binding character of promises: promises – so his claim goes – generate obligations and claims in virtue of their very nature. On his view, this is a truth that does not need to be grounded in any other: promises are what they are and not anything else. More precisely, promises are generators of obligations and claims. Obviously, this does not mean that nothing else informative can be said about promises: Reinach agrees that we still need to clarify what kind of event a promise is, what kinds of obligations and claims promises generate, whether promises need to be heard and/or accepted in order to have force, and more. But looking for some explanation of why promises generate obligations and claims is, in his view, a pointless endeavor. It is pointless because promising is a primitive kind of action and cannot be reduced to other, more primitive kinds of action.

Does Reinach’s position matter in this context? We submit that it does – for two main reasons. First, it matters because, if Reinach is right, then the view that the Inevitability Point demands a substantive explanation may be a fourth dogma about promises (a dogma to which even Gilbert has fallen prey). Second, it also matters because, if it can be shown that abiding by the fourth dogma generally dooms an account to failure, then the question of whether Reinach is right is an urgent one. However, tackling the question of whether – and/or to what extent – Reinach is right can only be a topic for future research.

11.8 Acknowledgments

This chapter underwent a lengthy development process and benefited from feedback and discussions with numerous colleagues. We are grateful to John Michael and Donnchadh O’Conaill for their comments on previous drafts and to Jed Lewinsohn for discussing the acceptance of promises with us. We presented the chapter detail at events in Cork, Frankfurt, Lugano, Oxford, and Warwick, where we received very valuable feedback from the audience. Finally, we would like to express our deepest gratitude to Margaret Gilbert for her generous feedback on our chapter, which has greatly contributed to refining our arguments, although we suspect she remains unpersuaded.

The aim of this essay is to analyze the basic concepts that underlie contract formation. I start from one axiom about the nature of contracts. Contracts, that is, the set of deontic relations (i.e., rights, obligations, etc.) that constitute a contract, are necessarily a product of both parties’ assents. Thus, contracts presuppose some kind of agreement: We simply cannot acquire a contractual right or obligation against or towards another person unless we and that person in some form agree to us having such a right or obligation. Accordingly, this axiom (the ‘Necessity of Agreement Axiom’ or simply ‘NOA’) entails that one cannot unilaterally create or assume a contractual right or obligation, namely create or assume a contractual right or obligation against or towards another person without the assent of one’s obligor or obligee. Contractual rights are, necessarily, those that are formed, created or brought about by agreement.

I will explore NOA’s implications for our understanding of contract formation. I maintain that if we adopt NOA, there are at least two different ways through which two persons can enter into a contract, that is, two mechanisms by which one may form contractual agreements. One is well known to anyone familiar with any modern system of positive contract law: ‘offer and acceptance’. The other, interestingly neglected by most contract lawyers and theorists, is what I call ‘contractual subscription’. I develop the concept of contractual subscription, and then proceed to discuss the notions of offer and acceptance. Drawing on Reinach’s idea of a ‘social act’, I provide an account of ‘juridical acts’.Footnote ¹ Juridical acts, I argue, are a type of social act, and contractual offers are a kind of juridical act. Finally, I analyze the role of another important notion in contract formation, that of a ‘promise’.

Many writers have argued that contractual relations are necessarily constituted by promises. Here I contend that promises are not only not necessary to enter into a contract but that, in their elementary form at least, promises are never sufficient to form a contract. I distinguish between what I call a ‘basic promise’ and a ‘promissory offer’. Developing a Reinachian insight, and against other philosophers and jurists, I argue that promises in their basic form produce their deontic effects immediately once they’re apprehended or known by the promisee. They thus bind without the promisee’s assent mediating. Therefore, if we remain committed to NOA and basic promises can create rights without the promisee’s agreement intervening, these rights cannot be contractual rights. We shall see that promissory offers (and offers more generally) are not essential to the process of contract formation. But only promises that are promissory offers and not basic promises can begin the process of contract formation.

This chapter is about the basic theoretical architecture of contract formation, and thus proceeds at a relatively high level of abstraction. It should, however, shed light on some traditional topics in contract law doctrine, such as the discussion about the structure of so-called ‘unilateral’ contracts, the problem of the moment of contract formation, and the status of the power to revoke an offer. Furthermore, I do not explore the related yet largely independent issue of the morality of contract formation, namely the moral principles that should (and typically do) inform our views about contract formation. I hope, however, that the views I defend about the conceptual structure of contract formation will clear up the territory for new forms of moral or normative inquiry in the domain of contract law. Our examination of the conceptual bases of contract formation will motivate normative questions such as: is there any value that requires contracts to be formed only by offer and acceptance and not by what I refer to as contractual subscription? Are we morally better off endorsing or rejecting NOA? What is the moral significance of the distinction between basic promises and promissory offers? I briefly elaborate on only one of these questions (Section 12.4), but I do hope that the account I offer of the rich landscape of concepts that govern contract formation will set up a framework for the careful study of these and other questions in the morality of contract. Let’s begin by exploring NOA.

12.1 The Necessity of Agreement Axiom

The NOA axiom holds that a contract binds only if all the contracting parties agree or give their mutual assent.Footnote ² One may identify at least two versions of NOA by distinguishing different forms of ontological dependence of contractual rights upon the parties’ assents.

One of them, which we may call ‘modal-dependence’, holds that contractual rights’ existence or bindingness is simply conditional upon the parties’ mutual assent, that is, that their mutual assent is necessary for the existence or bindingness of their contractual rights. This view, however, leaves open the question of whether the parties’ mutual assent is what ultimately grounds their contractual rights, that is, whether such rights ultimately obtain because of or in virtue of the parties’ mutual assent. For instance, according to the modal-dependence version of NOA, contractual rights’ ground may be a legislative act which in turn makes the parties’ mutual assent an enabling necessary condition for the bindingness of such rights. If this is the case, contractual rights’ bindingness is conditional upon the parties’ assents, yet they are grounded in an act of legislation (i.e., in a law that makes the parties’ mutual assent necessary for contract formation). By contrast, according to a version which we may call ‘ground-dependence’, all contractual rights necessarily obtain because of or in virtue of the parties’ mutual assent: a right is contractual in kind only if it is grounded in, and not merely modally dependent upon, the parties’ mutual assent. Later I further elaborate on this distinction and contend that these two different ways of understanding NOA have important implications for our views about the structure of contract formation. For the moment, however, we should stress that according to both the ground-dependence and modal-dependence versions of NOA, a person cannot hold a contractual right against another unless both parties have given their assent to the creation or bindingness of such right.Footnote ³ Therefore, under either of these versions, NOA entails that persons simply cannot bring about a binding contractual right unilaterally, that is, without their contracting party’s assent mediating.Footnote ⁴

Though widely accepted, I do not think NOA is what we may call a ‘commonsense truth’ about the nature of contracts, that is, an undeniable fact about their nature that we can know by simple observation of the pre-theoretical phenomenology of contracting. Indeed, we will see that some legal systems appear to consider what below I call basic promises (which are unilaterally binding) as sufficient grounds for legal liability, and contract theorists have offered serious arguments in favor of their contractual character. Thus, if NOA is not a commonsense truth about contracts, it requires justification: a theory of contract must make the case for (or against) the agreement-dependency of contractual rights. In this essay, I will assume the soundness of NOA and focus primarily on analyzing some of its implications for our understanding of the structure of contract formation. However, at the end of Section 12.4 I sketch the beginnings of a thesis regarding NOA’s justification.

Once we endorse NOA, we can think of different possible mechanisms of contract formation, that is, different ways through which persons can reach a contractual agreement. Let’s explore two of these contract formation mechanisms.

12.2 Contract Formation and Contract-Enabling Norms

We can think of at least two ways in which persons can give their mutual assent to a contractual relation. First, they can form a contractual agreement through the process standardly known as ‘offer and acceptance’. Second, they can reach a contractual agreement by assenting to a set of contractual terms (i.e., rights, obligations, etc.) that are not fixed by a contractual offer in the first place. In this case, they form their contract through what I call ‘contractual subscription’.Footnote ⁵ Though some recognize the limits of the offer and acceptance model of contract formation,Footnote ⁶ contract law scholars have neglected the task of providing a theoretical analysis of other possible ways of reaching contractual agreements.Footnote ⁷ Consider the case of contractual subscription.

If A and B are contracting parties to a contract C, they formed such contract through contractual subscription and not offer and acceptance if: 1) they both agreed to being subject to the terms of C (i.e., to the rights and obligations C constitutes) and 2) the terms of C were not fixed, in the way I specify below, by an offer from A or B. Though below I will offer another example, we may first use the case of entering into a marriage contract as a way of illustrating contractual subscription.

Marital relations entail a cluster of legal obligations and rights that spouses owe towards, and have against, each other. Spouses have no or little power to determine the content of many of these obligations and rights. Yet in modern societies at least, legal marital rights and obligations are contractual in the sense we identified above: their bindingness is conditional upon the involved parties’ assents. However, even if marital rights and obligations are in this sense contractual, it would be mistaken to hold that spousal assent must be preceded by a process of offer and acceptance. It is not that it is merely odd or counterintuitive to portray spouses as making reciprocal offers and acceptances when manifesting their spousal assent, the point is that we need not think of their assent to form a marriage contract as mediated or constituted by the process of offer and acceptance. To see why, we must abstract out of the example of marriage for a moment.

Consider the following thesis: The formation of a contractual agreement necessarily presupposes an antecedent ‘legal norm’Footnote ⁸ which fixes the content of certain rights and obligations and makes their bindingness conditional upon the parties’ mutual assent. We may call this type of norm a ‘contract-enabling norm’. Contract-enabling norms have roughly the following structure: they make it the case that if A and B assent to being subject to terms C (i.e., rights and obligations of content C), then they are thereby bound by C. In themselves, contract-enabling norms do not constitute contractual relations (i.e., contractual obligations or rights), yet they are, according to this thesis, necessary to enable the creation of contractual relations by way of establishing conditional rights and obligations whose bindingness holds upon two persons’ assents. Thus, there must be conditional rights or obligations in the first place for even the possibility of contractual assent. This is because, according to this view, assenting or agreeing to a contract is precisely fulfilling the condition stated by a norm which fixes a right or obligation which would bind the parties if they give their assent.

I think a thesis along these lines informs the widespread view that contracts must be formed by the two-step process of offer followed by acceptance. Offers, according to this view, are precisely contract-enabling norms, which acceptances turn into fully fledged, binding contractual relations. Therefore, the view goes, since contract-enabling norms are necessary for contract formation, offers are of the essence of contract formation too. One may of course dispute this way of understanding the nature of contractual agreements and hold that persons can reach contractual agreements, that would bring about contractual rights, without anything like a contract-enabling norm mediating. But let’s assume, arguendo, that the thesis is sound, and thus that contractual agreements, which constitute contractual relations, necessarily presuppose the existence of contract-enabling norms in the first place. The point I wish to stress here is that there are different legal facts that may create or constitute contract-enabling norms. Offers, as I argue below, are just one of them. Offers are thus not necessary for contract formation even if contract-enabling norms are. To flesh out this idea, let’s go back to the case of marriage.

For the case of the modern contract of marriage, we can think of a marriage contract-enabling norm as established by civil legislation. For instance, Section 1312 of the BGB (German Civil Code) states that: ‘[o]n the occasion of the marriage, the registrar as a rule is to ask the parties contracting the marriage separately whether they intend to enter into marriage with each other and, after the parties contracting the marriage have answered this question in the affirmative, state that they are now, by operation of law, lawfully joined spouses […]’.Footnote ⁹ Thus according to this provision, if the spouses declare to the relevant legal official their assent to getting married, they become lawful spouses and thus acquire a series of reciprocal legal obligations and rights. Among them, for example, they acquire the obligations and rights established by Sections 1353, 1356–59, or 1360 which holds that: ‘[t]he spouses are reciprocally obliged to appropriately maintain the family through their work and with their assets. If the household management is left to one spouse, that spouse as a rule performs their duty of contributing to family maintenance through work by managing the household.’Footnote ¹⁰ Section 1312, in conjunction with the other cited and other provisions, constitute a contract-enabling norm: they fix a set of conditional legal obligations and rights that two persons render reciprocally binding by providing their assent in the legally required form. Since in this case legislation already establishes a contract-enabling norm for the contract of marriage, such contract may be formed by the parties by subscription, namely by manifesting their mutual assent in the form required by the legislated contract-enabling norm established in the BGB. No offer is needed in this case.

Marital rights and obligations are not the only type of legal right and obligation that persons may incur by contractual subscription. Another prominent example is the case of some forms of fiduciary duty. For instance, in many legal systems, corporate directors acquire a set of legal obligations, notably duties of loyalty and care towards the shareholders of the corporation which appointed them. These duties and their correlative rights are conditional upon both the appointed directors and shareholders’ assent: a director A is only under a fiduciary duty towards the shareholders of corporation B if both A and the shareholders of B assented, in the legally specified way, to A becoming a director of B.Footnote ¹¹ Thus, if this is the case, directors’ fiduciary duties are contractual in kind: their binding force is conditional upon both parties’ assents. However, as in the case of marriage, to a large extent the content of such duties is fixed by contract-enabling norms created by judicial precedents (typically in common law jurisdictions) and legislation (in civilian jurisdictions). These legislative or judge-made contract-enabling norms establish such fiduciary duties while rendering their binding force conditional upon the reciprocally bound parties’ assents. In this case the parties, corporate shareholders and directors, bind themselves through the mechanism of contractual subscription and not offer and acceptance.Footnote ¹²

Contractual offers constitute one distinct class of contract-enabling norms. As I contend later in more detail, a contractual offer is a contract-enabling norm created by a contracting party, that is, by one of the at least two persons whose rights will be modified by entering into the contract. In preliminary terms, we may hold that a person A makes a contractual offer to person B if she creates an obligation or right of content C, whose bindingness is conditional upon B giving her assent to C (i.e., to the bindingness of C). Thus, revisiting the definition provided above, we can maintain that a contractual agreement is formed by contractual subscription if both parties have assented to being subject to the terms fixed in conditional form by a contract-enabling norm different from an offer (i.e., a contract-enabling norm not created by any of the involved contracting parties). Conversely, as we will see later in more detail, if the agreement is ultimately formed by the assent of one of the parties to the conditional obligations and rights fixed by a contract-enabling norm created by the other contracting party, the contractual agreement is formed by the process of offer and acceptance. Thus, contractual agreements need not be preceded by an offer, which is just one type of contract-enabling norm. As we saw in the case of marriage and corporate directors’ fiduciary duties, legislative enactments and judicial precedents can also constitute contract-enabling norms. Furthermore, not only legislation, judicial precedents and offers are capable of constituting contract-enabling norms. We should remain open to the idea that other legal norm-creating facts such as, in certain circumstances, customs or social practices may also constitute contract-enabling norms.

I have mentioned different possible sources of contract-enabling norms (i.e., legislation, judicial precedents, offers and, arguably, customs), which in turn lead to at least two different possible mechanisms of contractual agreement formation, namely offer and acceptance, and contractual subscription. Some may dispute this claim by arguing that in certain jurisdictions the law recognizes only offers and not legislation, judicial precedents or customs as facts that may create contract-enabling norms, and thus that in such legal systems contractual agreements can only be formed through offers followed by acceptances and not by contractual subscription. Others, perhaps invoking the value of contractual freedom, may contend that the moral value of contract law requires that only offers, which are contract-enabling norms created by the parties, and not those created by legislation, judicial precedents or custom should be capable of producing genuine contractual agreements. I think both views are mistaken. The first one is descriptively flawed, for all the jurisdictions at least I am familiar with comprise legislated, judge-made and, or customary contract-enabling norms. The second one ignores the plurality of values that may justify different aspects of our contractual practice.Footnote ¹³ Yet in any case, these queries are not our concern here. My aim is to lay out the basic theoretical possibilities of contract formation and not the ways in which such possibilities are instantiated in particular legal systems, or the limits on such possibilities imposed by our preferred theories about the morality of contract.Footnote ¹⁴ The key points we should take away for our subsequent discussion are the following: 1) contract-enabling norms, I have assumed, are necessary for persons to reach contractual agreements; 2) offers are just one way of establishing contract-enabling norms; and 3) if a contract-enabling norm is constituted by a legal source (e.g., legislation, judicial precedents or custom) different from an offer, the parties subject to that norm reach their contractual agreement, and thus form a contract, by contractual subscription and not by offer and acceptance.Footnote ¹⁵

Let’s now explore in more detail offer and acceptance as a mechanism of contractual agreement formation. Later on, I will move on to analyzing offers’ relationship with another notion that has been central to the development of the law of contracts: promise.

12.3 Offers and Acceptances

We are not concerned here with all kinds of offers. The offers that are relevant in the domain of contract formation are what we may call ‘juridical’ offers. People offer to others their condolences, their advice, etc. Yet these offers, or at least some of them, need not have juridical effects: they need not bring about any modification in the offeror’s or offeree’s rights.Footnote ¹⁶ Offers, in our sense, are a type of juridical act, that is, belong to the class of acts that necessarily have an immediate effect in the world of right. Thus, before exploring offers, we must take a slight detour and look at the notion of a juridical act.Footnote ¹⁷

12.4 Promises and Contract Formation

There are of course many ways of modelling the act of making a promise. Yet maintaining the theoretical framework used so far, we may define promising as a juridical act whereby a person (the promisor) assumes an obligation to act or refrain from acting in a given way towards another person (the promisee), who in turn acquires a claim-right to performance, namely an in personam right to performance directed towards the promisor. A great deal of contemporary contract theory, mostly in the Anglo-American context, is devoted to the examination of promising, assuming perhaps that the notion of a promise constitutes the most basic element contracts are made of.Footnote ³³ Under this view, promising is necessary for contracting; one simply cannot enter into a contract without making or accepting a promise. There are, however, good reasons for rejecting this view.

From our previous discussion, we may quickly infer that there are at least two ways in which, under the proposed framework, we may form a contractual agreement without making a promise. First, promises’ immediate deontic effects are exclusively obligations and their correlative in personam rights. Yet as we saw, and as I argue elsewhere in detail, some contracts only modify the parties’ in rem or property rights: their immediate deontic effects are only in rem and not in personam in kind.Footnote ³⁴ Thus, if there are contracts of this kind, they cannot be made of promises, for again all promises, even when they constitute contractual offers (as I discuss below), have only in personam effects as their immediate deontic effects. Thus, when made of the parties’ juridical acts, in rem contracts must be made of juridical acts which have in rem effects, and again, promises cannot be such acts.Footnote ³⁵ Second, we saw that if we adopt the modal-dependence version of NOA, the parties may enter into a contractual agreement without any of them performing any juridical act: they may enter into a contractual agreement by what I called contractual subscription. If there is a contract-enabling norm created by legislation, judicial precedent, custom or by any other legal sources different from an offer (like we saw for the case of marriage and corporate directors’ fiduciary duties), the assenting persons enter into a contractual agreement by giving what I called their mere assents (and, if applicable, by complying with the formalities established by the contract-enabling norm). If this is correct, contracting parties may enter into contractual agreements and assume contractual obligations and rights without any of them performing any juridical act, either a promise or of another kind. Yet even if not necessary for contracting, is the making of a promise ever sufficient for contracting?

When formulating this question, we are of course not concerned with whether according to the positive law a promise is sufficient for contracting, because it is well known that in many legal systems the law adds other conditions than promising for contract formation (e.g., consideration, certain formalities, etc.); and furthermore in other legal systems, mostly in the civilian tradition, the notion of a promise is largely absent in the law of contract formation. Our question is theoretical in kind. We are asking whether the juridical act of a promise creates obligations and rights in the form required by NOA, namely whether promissory obligations and rights’ bindingness depends upon the promisor and promisee’ assents. The answer to this question, however, depends on our views about the nature of promising. Since at least the seventeenth century, the question of whether a promise requires acceptance or uptake by the promisee in order to bind has received significant attention. Some theorists have argued that promises are binding only insofar as the promisee assents to the bindingness of the obligation and right proposed by the promisor’s promise. According to this view, promises are essentially a kind of offer, a juridical act whereby the promisor (the offeror) creates in the promisee (the offeree) an obligation and correlative claim-right only if the promisee assents to the bindingness of such obligation and right. By contrast, others hold that promises are not offers, their bindingness is not conditional upon the promisee’s assent. According to this view, promises bind unilaterally, that is, without the promisee’s assent mediating, even if the promisee may, once the promise is formed, waive his right to performance thereby terminating the promisor’s obligation.Footnote ³⁶

These opposing views are still well represented in contemporary work on the philosophy of promising. Joseph Raz, for instance, argues that it is a mistake to claim that someone has accepted a promise if, upon receiving it, she simply remains ‘stone-faced, saying nothing and not moving a muscle’. It is clear to Raz that there is no acceptance in this case and yet the promise binds the promisor once made, even if the promisee may immediately waive her claim-right to performance. He concludes then that there is no reason to hold that promises need to be accepted in order to bind.Footnote ³⁷ The opposite conclusion is reached by Charles Fried, who invokes the example of a group of people who, without any request by Fried mediating, send him a letter promising they won’t have more than two children. This promise, according to Fried, is not binding, and the reason is that promisees must have the capacity to decide whether to acquire a right to performance against promisors. Therefore, according to Fried, promisees must always accept the promises made to them for such promises to create any binding obligations or rights.Footnote ³⁸ I believe both Raz and Fried’s views capture important elements of the phenomenology of promise-making. We need a theory of the nature of promising that can make sense of cases in which promises appear to bind even if there is no acceptance by the promisee mediating and cases in which promises appear to bind only if the promisee gives her acceptance. In this respect, Reinach’s account of promising proves helpful.

According to Reinach, a promise is a kind of social act. Therefore, as we saw, as a social act the act of promising must necessarily have an addressee (the promisee); and such act is completed once the promisee can apprehend the promise in her experience. As he puts it, the promisee ‘[…] must take cognizance of the act of promising itself, he must, as we would put it somewhat more exactly, consciously take in the promising’.Footnote ³⁹ Moreover, as we saw, promises have certain immediate deontic effects. According to Reinach, such effects are an obligation to act as promised, and a correlative claim-right to performance (a claim-right which, once created by the promise, can of course be waived by the promisee).Footnote ⁴⁰ Yet Reinach’s account of the nature of promising suggests that the promisee’s acceptance is not required for promises to produce their immediate deontic effects. A promise creates an obligation and claim-right once the promisee apprehends it in her experience, that is, once she knows of the promise and its central elements (i.e., the identity of the promisor, and the content of the obligation and claim-right created by it). Thus, if the promisee cannot apprehend these elements about a promise made to her, she cannot acquire any promissory right against the promisor. Therefore, according to Reinach’s account, if the promise in Raz’s example was appropriately apprehended by the promisee, the promisor is obliged. The same applies to Fried’s example. The promise will indeed be binding if the promisors (i.e., the group of people who sent him the letter) know the identity of the promisee (i.e., Fried) and the promisee knows the identity of the promisors, and the content of the obligation and claim-right created by the promise. Reinach’s theory, however, can accommodate cases in which promises bind only insofar as accepted by the promisee.

Reinach acknowledges that some promises are made under the condition that the promisee accepts the promise.Footnote ⁴¹ Promisors have the power to render their promise into what we may call a ‘promissory offer’. Here again one may identify a power-conferring conception of promissory offers, that is, one which holds that promissory offers are juridical acts that besides creating a conditional obligation and claim-right to performance, confer a legal power to accept on the promisee, and thus that become unconditionally binding only if the promisee performs the juridical act of acceptance. Yet, as we did before, one may instead adopt a mutual assent conception of a promissory offer, according to which a promissory offer is a juridical act whereby a person (the promisor/offeror) only creates an obligation to perform and a correlative claim-right in another person (the promisee/offeree) whose bindingness is conditional upon the promisee giving her (mere) assent.Footnote ⁴² Promissory offers have in common with what I will call ‘basic promises’ the type of deontic effect they purport to ultimately generate, namely a fully fledged obligation in the promisor and correlative claim-right to performance in the promisee. Yet they are still offers, for the obligations and claim-rights they create bind only if their addressees assent to their bindingness. Thus, according to Reinach, among the different juridical acts that persons may choose to perform, they can make basic promises, which as we saw bind once apprehended by the promisee, and promissory offers, which bind once apprehended and accepted by the promisee. Furthermore, there is another important difference between basic promises and promissory offers.

As we saw, it is in the nature of promises to create a claim-right to performance in the promisee. The fact that promises create claim-rights to performance means that the promisee acquires a form of personal authority or exclusive deontic control over the promisor in the matter of the promise: it is exclusively up to the promisee to demand performance or to release the promisor from his obligation by waiving her promissory right. Among other things, the relationship of exclusive deontic control that promises generate entails that promisors do not have the unilateral power to revoke their promise, for again, if promises grant the promisee entitlements to exclusive deontic control over the promisor in the matter of the promise (i.e., a claim-right to performance), only the promisee and not the promisor can have the power to release the promisor.Footnote ⁴³ To be sure, by mutual agreement, the parties to a relationship of obligation can entitle both the obligee and the obligor with the power to revoke such relationship.Footnote ⁴⁴ Yet this type of deontic relationship differs from that created by promises which, as I have characterized them here at least, necessarily amount to relationships of right or exclusive deontic control by the promisee over the promisor in the matter of the promise.Footnote ⁴⁵ The essential irrevocability (by the promisor) of promissory relationships helps us to further distinguish basic promises from promissory offers. Unlike a basic promise, there is nothing in the concept of a validly made promissory offer that prevents it from being revoked by the promisor before accepted by the promisee. This is because offers, once apprehended by the offeree, do not constitute binding relationships of right (i.e., of exclusive deontic control) until accepted. Yet once accepted, a promissory offer produces a relationship of exclusive deontic control and therefore the promisor lacks the ability to revoke the promise (unless, as we said, the promisee has agreed to the promisor having such capacity and in such case their relationship is not a promissory deontic relationship any longer but one of a different kind).Footnote ⁴⁶

Let’s now conclude by analyzing the consequences of this way of understanding the nature of promises for the problem of contract formation.