Insincere Promises

Insincere Promises: The Law of Misrepresented Intent

Ian Ayres
Gregory Klass
Copyright Date: 2005
Published by: Yale University Press
Pages: 316
https://www.jstor.org/stable/j.ctt1npd5j
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  • Book Info
    Insincere Promises
    Book Description:

    How can a promise be a lie? Answer: when the promisor never intended to perform the promise. Such incidences of promissory fraud are frequently litigated because they can result in punitive damages awards. And an insincere promisor can even be held criminally liable. Yet courts have provided little guidance about what the scope of liability should be or what proof should be required. This book-the first ever devoted to the analysis of promissory fraud-answers these questions. Filled with examples of insincere promising from the case law as well as from literature and popular culture, the book is an indispensable guide for those who practice or teach contract law.

    The authors explore what promises say from the perspectives of philosophy, economics, and the law. They identify four chief mistakes that courts make in promissory fraud cases. And they offer a theory for how courts and practitioners should handle promissory fraud cases.

    eISBN: 978-0-300-12713-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-x)
  4. Chapter 1 Introduction
    (pp. 1-18)

    You sit down in a diner and peruse the menu for a few minutes. When the waiter arrives and wishes you a good morning, you respond in kind and then say, “I want two eggs over easy with hash browns and rye toast.” According to the dictionary meaning of your words, you have just reported to a fact about your appetitive state. But of course what you have really done is order breakfast. The salient question in the situation is not your feelings toward this or that item on the menu but what the waiter should bring. Your words decide...

  5. Chapter 2 How to Say Things with Promises
    (pp. 19-45)

    A central claim of this book is that promises are used not only to undertake obligations but also to say things about the world—such as that the promisor intends to do the act promised. This chapter provides a theoretical framework for thinking about promises as both doings and sayings. We approach the idea from our own area of expertise, which is the law. The action for breach of contract emphasizes the more familiar aspect of promises—the fact that promises are used explicitly to undertake obligations. The civil action for promissory fraud and the crime of false promise focus...

  6. Chapter 3 Falsehood and Responsibility
    (pp. 46-58)

    Having described what promises can say, we are well on our way to a theory of insincere promising. Once we see that promises can also be used to represent that something is the case, it is obvious that promisors can use them tomisrepresent how things are. But there are further complications in thinking about when a promisor should be held legally responsible for her promissory falsehood. While misrepresentations are, as a general matter, wrong, not every act of misrepresentation is subject to the same degree of censure. A knowing lie is worse than an honest mistake. And within the...

  7. Chapter 4 Why Promissory Fraud?
    (pp. 59-82)

    Our analysis up to this point has been largely descriptive. We have asked what promises can say, how they can be false, and when promisors are responsible for such falsehoods. We now turn to the normative and ask what, if anything, the law should do about promissory misrepresentations. Should we hold people legally liable for their insincere promises?

    There was once considerable judicial skepticism toward imposing such liability. While the vast majority of U.S. jurisdictions today recognize the civil action for promissory fraud, this was not always the case.¹ Some courts rejected the action based on bad metaphysics, like the...

  8. Chapter 5 The Representation Inquiry: What Does a Promise Say?
    (pp. 83-112)

    Having analyzed why the law should concern itself with insincere promises and what form legal sanctions should take, we now turn our attention to the epistemic question of how courts should go about determining whether a defendant has committed promissory misrepresentation or promissory fraud. This chapter discusses the logically first question of what the promisor said, explicitly or implicitly, about the probability of performance. We call this the “representation inquiry.” Chapter 6 then analyzes how a claimant can prove that the representation in question was false (the veracity inquiry) and that the promisor acted culpably in making it (the scienter...

  9. Chapter 6 The Veracity and Scienter Inquiries: Evidence of Falsity and Evidence of Culpability
    (pp. 113-141)

    Having decided what a promise said, it is next necessary to determine whether it was false and, if so, whether the promisor acted culpably. The first is the veracity question, the second the scienter question. We described the difference between these two inquiries in chapter 3. In this chapter, we explore what sorts of evidence courts should consider when answering each inquiry.

    The potential chilling effect of promissory fraud, both on contract formation and on efficient breach, might seem to speak for a high evidentiary bar. Courts in a number of jurisdictions have imposed especially heavy evidentiary burdens on claimants...

  10. Chapter 7 The Landscape of Promissory Misrepresentation
    (pp. 142-169)

    In the classic promissory-fraud case, one party to a legally enforceable contract enters into the agreement intending not to perform her end of the bargain. We have argued for extending the classic definition by taking notice of the many different things that a promise can say—and sometimes not say—about the probability of performance. So far, however, we have largely limited our discussion to promises that create legally enforceable contracts. But similar misrepresentations can occur in a wide array of situations—both before and after formation, where formation fails on other grounds, and even where the parties don’t contemplate...

  11. Chapter 8 False Promise: Insincere Promising as Crime
    (pp. 170-193)

    Promising something that you intend not to do is not just a tort, subject to punitive damages, but can also be a crime. The Model Penal Code’s definition of “theft by deception” expressly contemplates insincere promising, and the definitions of federal mail and wire fraud include prohibitions against “obtaining money or property by means of false or fraudulent . . . promises.”¹ We refer to the criminal offense of promissory misrepresentation asfalse promise.

    Why, in addition to the civil actions for promissory misrepresentation and promissory fraud, there should be a crime of false promise is a question we don’t...

  12. Chapter 9 Teaching Promissory Fraud
    (pp. 194-200)

    At many law schools, promissory fraud falls between the contracts chair and the torts chair. Contracts professors feel at liberty not to teach it because it is formally a tort, while for Torts professors, it’s really about promissory liability. Most students thus graduate from law school unaware that the action exists. But as we have stressed, promissory fraud is a frequently litigated cause of action — many jurisdictions generate more promissory-fraud cases than cases involving the pedagogically more popular doctrines of mistake or impossibility.¹ And this is not surprising, since promissory fraud is one of the only ways to overcome the...

  13. Chapter 10 Conclusion
    (pp. 201-205)

    There is an old story about the origin of the word “sincerity,” according to which dishonest Roman potters would fill cracks in flawed pottery with wax and then paint over the imperfection, so that the unsuspecting buyer would only learn the true condition of his purchase when the pot was heated at home for the first time. Pottery makers thus began selling their wares with the guarantee “sine cera,” or without wax.¹ Unfortunately, from our perspective, the story is apparently apocryphal and the word actually derives, via the French, from the Latinsincerus, meaning whole, pure, or genuine.² But the...

  14. Appendix A: Draft Prestatement of the Law of Insincere Promising
    (pp. 206-209)
  15. Appendix B: Promissory Fraud Abroad
    (pp. 210-214)
  16. Notes
    (pp. 215-284)
  17. Index
    (pp. 285-306)