§ 1.15 Expressions of Intention, Hope, Desire, or Opinion

[Go To Supp]

A person may express an intention to do something in the future without promising to do it.n1 There is nothing contradictory or inconsistent in the following statement: I fully expect and intend to leave you a thousand dollars in my will, but I do not promise to do it. A statement of intention is the mere expression of a state of mind, put in such a form as neither to invite nor to justify action in reliance by another person. A promise is also the expression of a state of mind, but put in such a form as to invite reliance by another person, making it reasonable and customary to throw the risk of loss arising from non-performance upon the one making the promise. One can make a promise without actually having the intention of performing it, just as one can express an intention without promising; but if one uses words of promise and at the same time clearly expresses an intention not to perform it, the promissory words have no meaning or effect.n2

A promise is an expression of intention, but it is not every expression of intention that can properly be called a promise. An expression of intention is not a promise unless it is communicated to one or more persons under such circumstances that they will expect performance and may reasonably act in reliance upon the expression. In an early English case, the father of a young lady made the general statement that he intended to give Ј100 to the man who should thereafter marry the daughter with her father's consent. It was held that this statement was not a promise, and that a young man who acted in reliance upon it and fulfilled the conditions could not get judgment for the payment of the money.n3 The case may have been so decided because plaintiff pleaded that defendant ''asserted and published'' that he would pay the Ј100 and not that he had promised to pay. There is no doubt, however, that an assertion or publication of an intention may be made under such circumstances as to reasonably be understood as a promise. Thus, where a vice-president of a punchboard corporation publicly testified before the State Gambling Commission that he would pay $100,000 to anyone who could find a crooked punchboard, it was held that this testimony constituted an offer to a unilateral contract.n4 There is little in common between this kind of statement and benevolent expressions of hope and desire in a personal or even a business setting.n5

So also, a statement of intention may be made under such circumstances of excitement or may be accompanied by such evidence that it is mere bluster or bragging, that no one would be justified in understanding it to be a promise to be relied upon. The line of distinction between promises and such nonpromissory statements of intention is in many cases difficult to draw. It must be drawn by making what seems to be a reasonable interpretation of the expressions of the parties in the light of the surrounding facts-an interpretation that must be made by a jury, or by a judge acting in the jury's place.n6 No doubt the fact that an expression of intention if interpreted as a promise would be improvident is influential in the process of interpretation.

It may be difficult to determine whether a legislative act is an offered promise or a mere expression of an intention and a policy. Thus, a railway tax law provided ''that the rate of taxation fixed by this act or any other law of this state shall not apply to any railway company hereafter building and operating a line of railroad ... until the same has been operated for the full period of ten years, unless the gross earnings shall equal $4,000 per mile.'' It was held that this was not an offer to contract; and Mr. Justice Holmes said: ''The broad ground in a case like this is that, in view of the subject matter, the legislature is not making promises, but framing a scheme of public revenue and public improvement. In announcing its policy, and providing for carrying it out, it may open a chance for benefits to those who comply with its conditions, but it does not address them, and therefore, it makes no promise to them. It simply indicates a course of conduct to be pursued until circumstances or its views of policy change.'' It was, therefore, held that a company that had constructed a railroad in reliance on the words of the taxation statute had no contract rights and that the state was free to tax such a company without impairing the ''obligation of a contract.''n7

The fact that the legislative enactment is not addressed to a specifically named party, even though it may invite action in reliance upon it, is a factor indicating that a promissory offer is not being made.n8 This factor is of importance also in the transactions of private individuals; but there are many cases in which published offers of a reward are promissory offers although addressed to the public at large, not to any specific person.n9

Also to be distinguished from promises are expressions of opinion. In one case a tenant stocked the land with cattle in reliance on the landlord's assurance as to water as follows: ''Never mind the water, John, I will see there will be plenty of water because it never failed in Minnesota yet.'' This made no contract, because by reasonable interpretation the words were mere prediction and encouragement, not promise.n10 The indefiniteness of the words tends to this conclusion. The result would probably have been different if the landlord had said: ''I will drive a producing well,'' or ''I will construct and fill a reservoir'' of a specified capacity. Although by no means limited to such cases,n11 the issue seems to arise primarily in the physician-patient relationship. After proposing surgery, a physician is asked, ''How long will the boy be in the hospital?'' He replies, ''Three or four days ... not over four; then the boy can go home, and it will be just a few days when he will go back to work with a perfect hand.'' As the court said, ''Clearly this and other testimony to the same effect would not justify a finding that the doctor contracted to complete the hospital treatment in three or four days or that the plaintiff would be able to go back to work within a few days thereafter.'' Rather, these words, in the context of the relationship, should be understood as expressions of opinion or predictions. Where the same doctor in the same conversation states ''I will guarantee to make the hand a hundred percent perfect hand,'' he has overstepped the bounds of customary words of reassurance and prediction and entered the territory of commitment.n12 The determination of whether these bounds have been overstepped is made by inquiring whether a reasonable person in the position of the patient would conclude whether the physician made a promise or merely stated an opinion. At time the conclusion may be so clear as to be a question of law for the court;n13 often, the question is for the jury.

Legal Topics:

For related research and practice materials, see the following legal topics:

Contracts LawFormationOffersGeneral OverviewContracts LawContract Conditions & ProvisionsGeneral OverviewContracts LawConsiderationEnforcement of PromisesGeneral OverviewContracts LawTypes of ContractsUnilateral ContractsGeneral Overview

FOOTNOTES:

(n1)Footnote 1.

U.S. - Estate of Bogley v. United States, 514 F.2d 1027 (Ct.Cl.1975) .

In Beverage Distributors, Inc. v. Olympia Brewing Co., 440 F.2d 21, 29, 1971 Trade Cas. (CCH) P73503 (9th Cir.1971) , cert. denied, 403 U.S. 906, 1971 Trade Cas. (CCH) P73503 , the following language was found to be non-promissory: ''it is our intention that, if they show the ability and application required to make the business successful under reasonable direction of our organization, they shall have a reasonable amount of the new common stock, which will be issued exclusively to members of our organization.''

On the other hand, ''Where one corporation presents to another corporation, a form of agreement reciting, 'It is understood and agreed that this contract is entered into upon the following conditions: That it is our intention and desire to continue under this agreement so long as your services, in our judgment, prove satisfactory,' we have no doubt that such language would ordinarily be understood to mean a promise to continue until dissatisfied.'' E.I. du Pont de Nemours Co. v. Claiborne-Reno Co., 64 F.2d 224, 89 A.L.R. 238 (8th Cir.1933) , cert. denied, 290 U.S. 646, 54 S. Ct. 64, 78 L. Ed. 561 .

National By-Products, Inc. v. United States, 405 F.2d 1256 (Ct.Cl.1969) .

In Keane v. Gartrell, 334 F.2d 556, 118 App. D.C. 166 (1964) , it was held that a corporate officer's statement that an account would be paid, ''even if I have to pay you personally'' was not a promise. This conclusion seems erroneous, but the case was rightly decided as there was no consideration for the promise.

Ala. - Alabama Nat. Life Ins. Co. v. National Union Life Ins. Co., 275 Ala. 28, 151 So.2d 762 (1963) .

Cal. -See Western Homes, Inc. v. Herbert Ketell, Inc., 236 Cal.App.2d 142, 45 Cal.Rptr. 856 (1965) in which the parties ''contemplated'' hiring plaintiff as rental manager. Held there was no promise to hire.

Conn. - Borden v. Skinner Chuck Co., 21 Conn.Sup. 184, 150 A.2d 607 (1958) .

Fla. -In Peters v. Bower, 63 So.2d 629 (Fla.1953) , the owner of a tract of land presented a plan to the Board of Commissioners and submitted an accompanying affidavit containing the statement: ''It is the intention of said subdivider to grade all the streets-and pave them-on or before two years after date.'' In a suit by a purchaser of one of the lots this was held not to be a promise to purchasers.

Ill. - Dewein v. Dewein's Est., 30 Ill.App.2d 446, 174 N.E.2d 875 (1961) .

Iowa -In two Iowa cases defendants signed charitable subscriptions on forms prepared by the charity which stated that ''I intend to pay'' and ''I intend to subscribe.'' In the first case it was held that parol evidence showed that no promise was intended and in the second it was held that, in the absence of parol evidence, the subscription would be construed against the drafter. Pappas v. Hauser, 197 N.W.2d 607 (Iowa 1972) : Pappas v. Bever, 219 N.W.2d 720 (Iowa 1974) .

Ky. - Cumberland & O.V. Ry. v. Shelbyville, B. & O. Ry., 117 Ky. 95, 77 S.W. 690 (1903) . A corporate resolution authorizing the president to sell corporate property at a fixed price is not a promise.

Mass. - Stewart v. Johnson, 252 Mass. 287, 147 N.E. 850 (1925) .

Mich. -In WKBW, Inc. v. Children's Bible Hour, 332 Mich. 569, 52 N.W.2d 219 (1952) , the words ''we fully intend to meet this obligation'' were interpreted as a promise to pay the debt of another, although the word ''promise'' does not appear. It was clear that forbearance to press the third party debtor was desired.

N.J. -In Esslinger's, Inc. v. Alachnowicz, 68 N.J.Super. 339, 172 A.2d 433 (1961) , the court held that a dealer's words, asserted to be a promise of a ''lifetime'' distributorship, were intended only as a statement of intention.

N.Y. -In Benjamin v. First Citizens Bank and Trust Co., 248 A.D. 610, 287 N.Y.S. 947 (1936) , plaintiff's assignor came from South Africa to attend an auction announced to be without reserve. Recovery was not allowed. The announcement was a statement merely of intention.

In Stone v. Commonwealth Finance Corp., 127 Misc. 368, 216 N.Y.S. 639 (1924) , aff'd, 215 A.D. 704, 212 N.Y.S. 924 (1925) , aff'd, 243 N.Y. 528, 154 N.E. 592 (1926) , a letter from a finance corporation to its subsidiary stated its readiness to place its resources behind the subsidiary's project to the extent necessary to insure its complete success, was held to be a mere statement of intent and neither a promise to third parties nor a promise to the subsidiary for their benefit.

Ohio -In Asbury v. Hugh L. Bates Lodge No. 686, 62 Ohio App. 430, 24 N.E.2d 638 (1939) , a masonic lodge passed a resolution to buy certain property from specified members at a specified price and authorized its officers to make the purchase. It was held that no promise to the sellers had been made.

S.D. -In Wipf v. Blake, 72 S.D. 10, 28 N.W.2d 881 (1947) , a debtor whose debt was barred wrote to his creditor: ''I am planning on making a settlement on this note as soon as I get the funds. I will let you know as soon as I am in a position to do this.'' The court held that this was not a promise to pay, and that if interpreted otherwise, the promise was conditional.

Eng. -In Randall v. Morgan, 33 Eng.Rep. 26 (Ch. 1805), the following statement made in a letter was held clearly not to be a promise despite the use of ''I shall.'' ''Whether Mary remains single or marries, I shall allow her the interest of Ј 2000 at 4 percent. If the latter I may bind myself to do it....''

(n2)Footnote 2. See § 1.17 below.

(n3)Footnote 3. Weeks v. Tybald, Noy 11 (1605). A similar case is Farina v. Fickus, [1900] 1 Ch. 331 , where a father wrote to his prospective son-in-law: ''She will have a share of what I leave after the death of her Mother.''

(n4)Footnote 4. Barnes v. Treece, 15 Wash.App. 437, 549 P.2d 1152 (1976) . Similar cases are collected in Rosenthal v. Al Packer Ford, Inc., 36 Md.App. 349, 374 A.2d 377 (1977) .

(n5)Footnote 5.

U.S. - Cabaud v. Federal Ins. Co., 37 F.2d 23 (2d Cir.1930) , quoted in § 13 above.

In re Phillips Petroleum Securities Litigation, 697 F.Supp. 1344 (D.Del.1988) . A purchaser of securities in a takeover attempt stated in a press release that it would ''not sell any Phillips shares owned by it back to Phillips except on an equal basis with all other shareholders.'' This is not an offer nor a promise on which investors can rely. It asks for nothing in return and no action in reliance is desired. It is an expression of intention.

Ga. - Charles v. Simmons, 215 Ga. 794, 113 S.E.2d 604 (1960) , cert. denied, 364 U.S. 871 noted under § 201.

Ill. -In Harper v. Kennedy, 15 Ill.2d 46, 153 N.E.2d 801 (1958) , the court held that the evidence did not show a contract to make a will canceling an existing debt. It showed merely that the parties ''regarded each other with benevolence and had expressed an intention or desire that the survivor of them should care for the family of the other. Such expression did not constitute a binding contract to make a will. It was more in the nature of a hope or an unenforceable expectation based upon a mere statement of intention.''

Mass. - Phoenix Spring Bev. Co. v. Harvard Brewing Co., 312 Mass. 501, 45 N.E.2d 473 (1942) .

Mich. - Hammel v. Foor, 359 Mich. 392, 102 N.W.2d 196 (1960) , noted § 419.

N.J. -A mere expression of hope is neither an offer nor an acceptance. The same is true of an expression of intention to act in a certain manner if it is of such a character that it cannot reasonably be understood to be a promise. See Broad Street Nat. Bank v. Collier, 112 N.J.L. 41, 169 A. 552 (1933) .

N.C. - Yeager v. Dobbins, 252 N.C. 824, 114 S.E.2d 820 (1960) , is another similar case. A man's letter to his son-in-law expressing hopes and intentions with respect to a future conveyance of a farm was held to create no power of acceptance, although the son-in-law moved from Pennsylvania to North Carolina with his family and ran the farm for some years. Two dissenting judges asserted that the complaint alleged a valid contract; but it is clear that it would have to be established by proof of an offer made otherwise than by the letter of the father.

In Bowman v. Hill, 45 N.C.App. 116, 262 S.E.2d 376 (1980) , a document recited, ''whereas the parties ... desire to construct a building adjacent to the building of the party of the first part....'' It was held this statement of intention was not a promise.

Wyo. -An expression of a ''desire'' to pay another man's debt is not a promise to pay it. Robar Corporation v. Kingham, 51 Wyo. 409, 66 P.2d 1046 (1937) .

In Farm and Garden Sales v. Allied Equipment Co., 138 F.Supp. 317, 1956 Trade Cas. (CCH) P68433 (E.D.Va.1956) , a distributor asked the manufacturer for an assurance of continuance of their relation. In reply he received only compliments on his past performance and this sentence, ''I hope that we may have the pleasure of many more years of pleasant, profitable association.'' The decision was reversed and remanded for further findings. Although this language was non-committal, the manufacturer owes a distributor a reasonable period of time in which to recoup its investment, unless the distributor has materially breached, 237 F.2d 879, 1956 Trade Cas. (CCH) P68502 (4th Cir.) .

(n6)Footnote 6. ''If it was the real understanding of the parties that the defendant was to procure an actual purchaser with such splendid profits to the plaintiff from so small an investment, there was a contract which should be given effect. To create an obligation such must have been the understanding. If what was said was mere talk, boasting by the broker of what could be accomplished, hopeful talk as to land prospects, without a genuine intention that the defendant was bound to produce a purchaser at the price fixed, there was no contract. The proofs will tell.'' Smith v. Vosika, 166 Minn. 18, 208 N.W. 1 (1926) .

''His further language was in the nature of an explosion of wrath against some supposed thief who had stolen the harness, and was coupled with boasting and bluster about the prosecution of the thief. It was indicative of a state of excitement, so out of proportion to the supposed cause of it, that it should be regarded rather as the extravagant exclamation of an excited man than as manifesting an intention to contract.'' Higgins v. Lessig, 49 Ill.App. 459 (1893) . See also Stamper v. Temple, 25 Tenn. 113 (1845) .

The defendant returned to his hotel to find it ablaze. His wife was on the fourth floor. He stated ''I will give $5,000 to any person who will bring the body of my wife out of that building, dead or alive.'' The defendant entered the building and brought out her dead body. This was held to state a cause of action. Reif v. Paige, 55 Wis. 496, 13 N.W. 473 (1882) .

(n7)Footnote 7.

U.S. - Wisconsin & M.R. Co. v. Powers, 191 U.S. 379, 24 S.Ct. 107, 48 L.Ed. 229 (1903) . It may be suggested that while the interpretation given by the court seems not unreasonable to a disinterested party, it would not seem so reasonable to one who had built a railroad and rendered the desired service in reliance on the statutory assurance. It may be sound policy to deprive legislature of the power to bind the state by promises of future exemption from taxation.

In Cutler-Hammer, Inc. v. United States, 441 F.2d 1179, 194 Ct. Cl. 788 (Ct.Cl.1971) it was concluded that certain Treasury regulations made no offers to contracts.

N.M. -In Board of County Commissioners v. New Mexico & S.P. Ry., 3 N.M. 126, 2 P. 376 (1883) , the court concluded that legislation similar to that in the Wisconsin & M.R. Co. case, above, was ''a bid for railroads under fair and explicit terms, and upon a consideration of great public importance.''

(n8)Footnote 8.

Ind. - Grand Lodge Hall Ass'n v. Moore, 224 Ind. 575, 70 N.E.2d 19, 173 A.L.R. 6 (1945) , aff'd, 330 U.S. 808 , cert. denied, 331 U.S. 864 .

(n9)Footnote 9. See §§ 2.4 and 3.10 below.

(n10)Footnote 10. Anderson v. Backlund, 159 Minn. 423, 199 N.W. 90 (1924) .

(n11)Footnote 11.

Mass. -A and B owed plaintiff $221.52. Plaintiff was about to commence legal action when the defendant, who apparently is B's attorney or insurance broker, sent the following letter: ''I am attempting to adjust an automobile case for Mr. B, resulting from his being seriously injured... If I am successful in settling this matter, the balance due will be paid at that time. If I am not successful A will doubtlessly be called upon to pay it. I would suggest that you allow the matter to remain in status quo for a short period to determine whether or not I can effect a settlement.'' Plaintiff refrained from suit and B received a settlement but spent the money without paying plaintiff. It was held that the letter-writer had made a prophecy, not a promise. Sears Boston Employees Federal Credit Union v. Cummings, 322 Mass. 81, 76 N.E.2d 150 (1947) .

N.Y. -On similar facts the court points out that an attorney ''is not liable unless he has assumed a personal liability in clear and unmistakable language.'' The court is absolutely correct in taking into account the social context in which the alleged promise is made. Sefi Fabricators v. Tillim, 79 Misc.2d 213, 360 N.Y.S.2d 146 (1973) .

(n12)Footnote 12. Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929) . Other cases are in accord.

U.S. - Johnston v. Rodis, 251 F.2d 917 (1958) .

Ill. - Gault v. Sideman, 42 Ill.App.2d 96, 191 N.E.2d 436 (1963) . This case discusses a unique consideration requirement.

Mass. - Sullivan v. O'Connor, 363 Mass. 579, 296 N.E.2d 183 (1973) . The surgeon promised to attain a given cosmetic improvement by plastic surgery. The case is noted in 24 DePaul L.Rev. 212 (1974); 50 Ind.L.J. 361 (1975); 54 N.C.L.Rev. 885 (1976).

Mich. - Guilmet v. Campbell, 385 Mich. 57, 188 N.W.2d 601, 43 A.L.R.3d 1194 (1971) involved a contract to cure an ulcer by surgery. Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816 (1957) involved a promise to perform a caesarian section. Such decisions apparently spurred the legislature to place contracts with respect to medical care within the Statute of Frauds. This enactment was applied in Gilmore v. O'Sullivan, 106 Mich.App. 35, 307 N.W.2d 695 (1981) .

N.Y. - Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330 (1955) was a ''promise to cure'' case, noted in 7 Syr.L.Rev. 165 (1955) .

(n13)Footnote 13. In George Bernard Shaw's play, ''The Doctor's Dilemma'' (1906), a financially successful physician, Dr. Schutzmacher, reveals the secret of his financial success to his former classmate, Dr. Ridgeon, in the following dialog:

''Shutzmacher. Oh, in my case the secret was simple enough, though I suppose I should have got into trouble if it had attracted any notice. And I'm afraid you'll think it rather infra dig.

Ridgeon. Oh, I have an open mind. What was the secret?

Schutzmacher. Well, the secret was just two words.

Ridgeon. Not Consultation Free, was it?

Schutzmacher [shocked]. No, no. Really!

Ridgeon [apologetic]. Of course not. I was only joking.

Schutzmacher. My two words were simply Cure Guaranteed.

Ridgeon [admiring]. Cure Guaranteed!

Schutzmacher. Guaranteed. After all, that's what everybody wants from a doctor, isn't it?''