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to take responsibility over the effects which their representation had over R’s investment decisions, but not a commitment to make the representation itself good. The way in which PE forces the owner to comply with that duty serves the social goals that were laid down in Section 3. I will argue as well, that PE should be read as enforcing LPA obligations even where it operates in situations of promises to give a gift which fail on formality requirements. I then want to show how this interpretation of the obligation that lies at the heart of PE can help us to understand the most unique, and contentious aspect of the doctrine, namely, the remedy which successful claimants in PE can expect to get.

2.Between Promise and Detachment

2.1The moral principle

Let us start with a small-scale example. Imagine that on Monday morning you phone up a fellow parent (P) and offer to pick up his daughter from school tomorrow for a play date with your son. He happily accepts. But as Monday evening comes to a close you realize that your son hasn’t finished his homework due on Wednesday, nor did he have enough time to practise sufficiently his solo flute part for the coming school concert. You want to cancel the play date. On what terms can you do so without breaking your duty towards P? This depends of course on the level of your commitment to the representation ‘I will have your son tomorrow after school’. If your offer is a promise, in cancelling you will have broken your obligation unless P releases you from it. For, the whole point of promise is that the promisor is taking on a duty to do as she promised even if she is now reluctant to do so. But it seems to me that in the circumstances, the obligation you have taken upon yourself does not feature this high stringency level of ‘make the representation good or breach your duty’.

The better interpretation of the situation (though it is hard to say for sure without more details) is that you will be breaking your moral obligation to P only if he incurs some harm as a result of you backtracking. Thus, if P booked a doctor’s appointment or car service thinking that childcare for Tuesday afternoon was sorted out, you will have a duty to take his son from school after all, help him to find an alternative, or make it up for him some other way.5 But it would seem overly moralistic to say that unless you stick to the original plan, you have wronged P. Promises no doubt come with an ‘emergency rule’ which stipulates that if very serious reasons for retracting come up—say if your grandma was run over by a bus—the duty to fulfil them will be annulled (leaving perhaps a trace in the form of some other weak obligation to try and rearrange). But what our little story was meant show is that some obligations have a very different set of opt-out clauses built

5 Strictly speaking, you have to cover P’s babysitter costs, but this is probably impractical in an amicable relationship. It may well be a case where making up for the reliance damage is not really possible—a problem that will resurface in section 4.2.

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into them. The reasons that legitimize retraction from these obligations are of a much less serious nature than those cited by the ‘emergency rule’. Thus, depending on the circumstances, your representation that ‘X will obtain’ can commit you either to do all that you can to make it come true, unless an emergency distracts you, or merely to make sure that the representee is not harmed if you no longer wish that X obtains. I call this relaxed obligation LPA.6

Here is another example. Take O, a busy CFO, who cheerfully says to his friend R ‘no need to fix a formal meeting, just drop by any Wednesday’. It would seem odd if R accuses O of wronging him when O later asks him to come between 15.00 and 16.00 if he wishes to see her on a particular Wednesday. But R will have a reason to complain, and the CFO should feel guilty, if R has already arranged his schedule based on her proclaimed flexibility. This is because the commitment that arises out of R’s statement is probably an LPA obligation, not a promise. In this and other LPA situations, the stance which O is taking towards her representation is fundamentally different from that of a promisor: whereas the promisor vows to make good the representation itself, O only assumes responsibility for the (reasonable) effect it had over R.

In my view, LPA and promise are not instantiations of the same obligation albeit with a different content (namely, to make the representation good vs. compensate for reliance).7 There is an important analytical distinction between them which reflects the intricacies of interpersonal relationships. To be sure, it is possible to make a promise to ‘either make my representation good or compensate you for your reliance losses’. But in the situations I discuss here and in the rest of the chapter, the obligators do not do that. They simply make a representation that ‘X will obtain’ (‘let’s have dinner next week’, ‘I’ll see you tomorrow’, ‘we’ll sign the contract soon’), but the duty which they thereby acquire is not to make the representation good. Rather, what these representations entail is a low-key commitment and a partial responsibility over the representation—to its effects on others not to its content. In the spontaneous flow of interpersonal relationship we are often not explicit about the level of commitment at which we aim, and that may lead to friction—what the representor understood to be the lighter kind of obligation, the representee can take to be a promise. But it seems to me that most people are equipped with enough subtlety and emotional intelligence to discern on a regular basis the level of commitment at which the representor aims—a promise or a mere LPA. This social skill to sort out LPAs from promises enables us to evaluate the behaviour of a person who retracts from a representation (should we be angry with her?) as well as to assess whether we can change our mind about a

6Many of the scenarios which Southwood and Friedrich describe as ‘less than a promise’ (like the ‘dinner party’ (p. 266) and ‘job offer’ (p. 268)) are in fact examples of LPA obligation (Southwood and Friedrich 2009); the same is true for the scenario discussed in Deigh 2002, 497–8.

7For the view that voluntary moral obligations can be of different kinds (not only with different content) see Shiffrin 2008, 285. Raz 1982, 931, 936: ‘promises are but an extreme case of voluntary obligations’.

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representation we made to other people (should I stick to it even if I have a cold, or will only a broken leg discharge me from this commitment?).8

You could insist that what I call LPA obligation is just a unique kind of promise, in which the opt-out clause is much more relaxed (so that you need not do as you promised as long as you make sure that the promise does not suffer any harm as a result). In fact, nothing in the following analysis of the moral or legal obligation will change if you call this kind of obligation, say, L-promise. As long as you accept that representations can give rise to either ‘normal’ or ‘L’ promises, we can proceed together. I do believe however, that the difference between a representor who takes it upon herself to fulfil the representation, and a representor that leaves the door wide open for withdrawal, as long as no harm is caused, is material and deep enough to justify the stipulation of a separate category of voluntary obligations.9

Now that we are clear, I hope, about the nature of the LPA obligation we can explore its moral grounding. Let us start with what Thomas Scanlon calls Principle L (for Loss prevention):

If one has intentionally or negligently led someone to expect that one is going to follow a certain course of action, X, and one has good reason to believe that that person will suffer a significant loss as a result of this expectation if one does not follow X then one must take reasonable steps to prevent that loss.10

These ‘reasonable steps’, says Scanlon, can take three forms: doing X, giving timely warning that one is not going to do X, or compensating the other person for the loss.11 Principle L is not dependent for its validity on any social convention, says Scanlon. It is a moral principle that finds its justification like all other moral principles, i.e. by showing that it cannot be reasonably rejected. Since it is not unreasonable to refuse to grant others the freedom to ignore the losses caused by the expectations they intentionally or negligently lead us to form, principle L embodies a valid moral norm.12

8Note also, that since promises are not routinely prefaced by a locution such as ‘I promise’, unclarity about whether the representor has taken an obligation upon herself can arise in the context of any odd promise. Such ambiguity is inescapable if you accept Scanlon’s view that neither the language, nor even the concept, of promise is necessary for promise relationship (see Scanlon 1998, 297). Subtle social skills are also required in order to decipher the precise ambit of a promise, see Raz 1982, 932.

9I appeal here to the pragmatist argument that ‘concepts prove their worth in how cost effectively they allow one to pick out useful categories’: Henry Smith: ‘Emergent Property’ in this volume.

10Scanlon 1998, 300; for an earlier version of the loss prevention principle see MacCormick 1972: ‘if one man acts in a potentially detrimental way in reliance upon beliefs about another’s future conduct, and if the other person by some act of his intentionally or knowingly induced the former to rely upon him, then the latter has an obligation not to act in a manner which will disappoint the other’s reliance’ (p. 69). In support of the principle MacCormick indeed invokes some famous estoppel cases (pp. 64–6). However, his argument for the principle and the way it supports a general account of promising lack the ingenuity of Scanlon’s analysis (Raz 1972 and Pratt 2002, 93).

11O incurs a duty to make the representation good only when she makes a promise, and if O’s communication to R is to be considered as one, much more has to happen: the principle on which the obligation to keep a promise is based (which Scanlon calls F for Fidelity) requires that A acts with intention to provide an assurance that he or she will do X, B knows this and A knows that B knows (see Scanlon 1998, 304).

12Scanlon 1998, 301.

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One worry is that principle L is placing on O too much responsibility for the free choices of people who came to develop all kinds of expectations on the basis of her behaviour. To borrow an example from Charles Fried: if R decides to renew the lease over his flat because he derives much pleasure from listening to the members of the quartet who meet next door to practise, does the violinist owe him any compensation when they decide to practise at the cellist’s home instead? ‘Why should my liberty be constrained by the harm you would suffer from the disappointment of the expectations you choose to entertain about my choices?’13 This is a serious concern, and we will come back to it when we discuss the ‘reasonableness’ condition for the legal enforcement of principle L. But in the next section I want to focus on the way in which Scanlon’s accounts for principle L is missing an important aspect of the LPA obligation, namely, its voluntary modus.

2.2 The value of LPA

In the general framework of Scanlon’s project, principle L occupies a specific (and crucial) place: it is one of the stepping stones on the way to establishing the moral obligation to keep promises on principles that ‘no one can reasonably reject as a basis for informed unenforced general agreement’.14 By revealing the roots of the duty to keep a promise in more basic moral principles like principle L, Scanlon hopes to refute the widely accepted Humean view of the promissory obligation as deriving from the prohibition to abuse a useful social convention. Scanlon’s move has been the subject of lively debate, but for our purposes only the free standing status of principle L as a valid moral principle is important.

Principle L, says Scanlon, must be a valid moral principle because it is ‘not unreasonable to refuse to grant others the freedom to ignore the losses caused by the expectations they intentionally or negligently lead others to form’.15 But the noble end of protecting the Rs of this world from harm is only one part of the story. Perhaps no less important for the justification of principle L is the great value of the relationships that can form around the obligation that it encompasses. Scanlon’s Principle L is framed as a tort-like duty to take care not to induce in others unrealistic expectations about representations that we make. But as should be clear from my examples, I believe that the LPA obligation can also behave as a contract-like duty when it embodies a specific stance that O can choose to adopt towards a representation she made: namely, refusing to commit to the content of the representation but willing to ensure that it does not have a detrimental effect on others.

LPA, in other words, has a voluntary mode. A ‘voluntary’ obligation is one that binds the obligor because she intended to be bound in that way. In the way Scanlon depicts the obligation in principle L, the duty to compensate R (or give timely warning) is only a by-product of O’s representation, and her behaviour afterwards.

13 Fried 1981, 10.

14 Scanlon 1998, 153.

15 Scanlon 1998, 31.

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But here I want to highlight the way in which coming under an LPA obligation can be purposeful—similar to the way in which making a promise is an intentional assumption of a duty to keep it.16 In its voluntary mode, the great value of the LPA obligation derives from the interest we have in being able to take on duties towards other people, assume responsibility over representations we make, and invite trust. The ability to commit facilitates cooperation, and allows people to engage in projects that require much more than a wise guess about the other party’s intentions.17 The way in which the LPA obligation is valuable not only to the representee, but also to the representor will play a crucial role once we turn to look at the legal enforcement of these moral obligations. I will argue that the modus operandi of this enforcement, namely PE, cannot be understood without reference to the value of the LPA obligation to both parties, R and O.

The ability to communicate to others that we take on an LPA obligation in regards to some representation of ours allows you to reap the benefits of commitment even when you are not (yet) willing to fully bind yourself to the content of the representation. This intermediate level of commitment facilitates a flexible spontaneous flow of societal and personal relationship. It allows you to indicate your intentions about a certain state of affairs X, and invite the cooperation of others in regards to it, before you have fully made up your mind about it. Crucially, it allows you to do so in a subtle way, without explicitly mentioning the possibility that the state of affairs mentioned in the representation may never materialize. The representor’s hope is that the representee is socially adept in a way that will enable him to discern her low level of commitment on this occasion. This mutual understanding will enable both parties to look forward to the cooperation without the embarrassment of having to put on the table the chance that it will fail. For being explicit about the possibility of failure will many times hasten the end of the project (see further Section 3.2). Thus, the ability to communicate to others that we are willing to take on LPA obligations adds another string to the bow with which we orchestrate the intricate building of interpersonal trust.

In the babysitting story, for example, if ‘I will have your daughter around tomorrow’ could only be interpreted as a promise, you would have to wait until you can be absolutely sure that the play date suits you, or add to the representation a caveat that you may change your mind, but will stick to the plan if the other parent relies on it. But by the time you can firmly make up your mind it may be too late (she will have had other plans), and sometimes the moment for full blown commitment indeed never arrives. And the caveat that you may change your mind would sound odd, if not offensive—the other parent should be able to understand from the circumstances at which level of commitment the representation is pitched—promise or a mere LPA. And it seems to me that there is something

16This is the core of the distinction between my reading of proprietary estoppel and the interpretation suggested by Spence (1999)—see n. 44.

17As Fried explains in the context of promises: ‘if [cooperation with others] is my purpose . . . it is essential that I be able to deliver myself into their hands more firmly than where they simply predict my future course’ (Fried 1981, 13); see also Raz 1977a, 227–8.