How Promises Are Made

How Promises Are Made

A promise reaches the other party through one of two channels. Restatement (Second) of Contracts § 4 provides that a promise may be stated in words, either oral or written, or may be inferred wholly or partly from conduct.¹ The rule completes the definition in § 2, under which a promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify the promisee in understanding that a commitment has been made.²

Neither section ranks the channels. A commitment that reaches a client in a signed letter, on a telephone call, or through a lawyer's start on the file gives the client the same thing to rely on, so the definition looks to what the promisee was justified in understanding and not to the medium. If only written words counted, a lawyer could accept a matter, let the client depend on that acceptance, and then disclaim any commitment because no letter went out. Opening both channels closes that route.

A client-lawyer arrangement can therefore exist without a formal document, and a signed fee letter earns its place as proof of the promises and not as their source. These are common-law rules. A transaction that mixes goods and services is sorted by its predominant purpose: an estimate covering both carpet and its installation is a sale of goods under Article 2 if the sale predominates and the labor is incidental, and a common law contract if the opposite is true.³ An engagement for legal services consists of labor, so the common-law rules govern it. The first subsection below covers promises stated in words, spoken or written; the second covers promises read from what a party does.

Oral and Written Promises

Section 4 begins with words and treats spoken and written words alike.⁴ A client and a lawyer who settle the scope of a matter on the telephone have stated promises in the same sense as two people who sign a letter, because each channel carries a manifestation of commitment. The question stays where the definition put it: do the words, in context, justify the listener in understanding that a commitment has been made?⁵

People use the word contract for two things, the enforceable promise and the document that embodies it, and a promise generally need not be in writing to be enforced.⁶ Hawkins v. McGee illustrates the question: it considers whether a doctor's assertion that he would make a young man's injured hand “a hundred percent perfect” created a binding, enforceable promise.⁷

Assent follows the same objective logic. Contract law looks to the external meaning of a person's words and conduct: would a reasonable person in the other party's position understand them to reflect an intent to be bound? The most common forms of objective assent are express words (“I agree”) and a signature, but a nod, a wink, or nearly any word, gesture, or other action can serve, depending on the circumstances.⁸ A client's spoken “Agreed” is therefore a manifestation of assent with no signature needed. Employment shows how ordinary this informality is: employers and employees enter contracts every day in highly informal ways, orally or in writing, for an indefinite or a specified term, in detail or in a few words.⁹

The two scenes divide on whether anything was communicated, and a signature plays no part in drawing the line. An exam stem that says “nothing was signed” therefore leaves the question open, and you must read for what the lawyer actually said or sent to the client. A lawyer who says nothing but starts work raises the other channel, inference from conduct, which the next subsection covers.

A writing matters at a different stage of the analysis. The original Statute of Frauds listed six categories of contracts that were enforceable only if in a signed writing.¹⁰ That requirement asks whether a promise already made can be enforced, and it leaves untouched the earlier question whether a promise was stated. The categories belong to the law of enforceability, so this chapter does not catalogue them.

That an oral promise can bind does not make it wise to rely on one. Oral promises live in the memories of the people who made them, and memories fade, shift with time, and have been known to change once a dispute arises.¹¹ Formalities such as a signed writing answer that weakness in four ways.¹² Each has a counterpart in a client engagement:

1. The evidentiary function: a signed letter gives reliable proof of the scope of the work and the fee when a later dispute turns on what was promised.
2. The cautionary function: the act of reviewing and signing makes each side pause before committing.
3. The channeling function: a written engagement letter is the familiar device that tells everyone a deal has been made, and it spares a tribunal from reconstructing the parties' intentions from scattered remarks.
4. The clarification function: drafting terms pushes the parties to settle details that a conversation leaves vague, such as what the representation covers and when fees fall due.

A signed letter is therefore good practice and not a precondition of a promise: a lawyer and a client can form an engagement without formal paper, and the writing reduces later fights over scope and price.

Parties sometimes settle the substance and say that a formal document will follow. Whether they are bound in the meantime turns on whether they meant to conclude their agreement at the earlier point. Two principles govern. Absent an expressed intent that no contract shall exist, mutual assent to exchange acts or promises is enough to create a binding contract even though it is oral or informal, and a party who wants to avoid that obligation must express an intention not to be bound until a writing is executed.¹³ Courts ask whether a party expressly reserved the right not to be bound without a writing, whether performance has begun, whether all the terms have been agreed, and whether this kind of agreement is usually put in writing.¹⁴ The inquiry is objective: if a reasonable person in the other party's position knew or should have known that the opposing party did not intend to be bound without a formal agreement, no contract exists until the formal agreement is executed.¹⁵

Anticipating a formal document does not make a preliminary promise unenforceable. In a dispute over a business called Festival Foods, the court noted that one side had said the defendants were “in no position to sign anything” because they had no bank loan money and no attorney, and it observed that “[t]he fact that a formal written document is anticipated does not preclude enforcement of a specific preliminary promise.”¹⁶ The defendants' loan was later approved, they consulted an attorney, and they remained in possession of the business and kept operating it, events that resemble the partial performance the second question above asks about.¹⁷

An exam stem that mentions a forthcoming formal document therefore does not end the analysis. The question is whether anyone expressed, or reasonably appeared to express, an intention to wait for the signed writing before being bound.

Promises Inferred From Conduct

The Restatement's second channel is conduct: a promise may be inferred wholly or partly from it.²⁰ Conduct may carry the entire commitment, as when a lawyer says nothing and simply starts the work a person asked for. It may also complete what words leave open, as when a lawyer says only “send me the papers” and then reviews them and drafts a response. Both fit the definition of a promise, which asks whether a commitment was manifested so as to justify the promisee's understanding.²¹ The law judges a manifestation by the external meaning of a person's words and conduct, and any word, gesture, or other action can manifest assent depending on the circumstances.²²

The law reads conduct this way because contract law turns on what a person manifests, not on what the person privately intends.²³ A lawyer who accepts a stranger's confidences, begins work, and lets the person stop looking for other help cannot defeat the inference by pointing out that she never said yes. A plain statement declining the matter, on the other hand, changes what the surrounding conduct reasonably means, because the test asks how a reasonable person in the other party's position would read everything said and done.

Starting work in response to a request is the most common conduct that carries a promise. If the court finds that a request invites acceptance either by a promise or by performance, the offeree can accept in either manner. A spoken or written promissory acceptance forms a bilateral contract, and so does the beginning of performance, which communicates an implied promise to complete it.²⁴ That is the likely result even if the offeror does not know that performance has begun.²⁵ A client who writes, “Please prepare and file my answer by the 15th, and I will pay your usual hourly rate,” invites acceptance either way, so a lawyer who begins drafting the answer has accepted and, by starting, has impliedly promised to finish.

Courts sometimes order payment without finding any promise. When providers care for a patient who promised nothing, they are not acting in return for a promise or in reliance on one, yet the law holds the patient responsible for the reasonable value of the services. The basis is restitution, not contract.²⁶ Liability on that footing does not depend on a promise inferred from conduct, so it falls outside this subsection; the next section takes up relationships that exist without a contract.

What separates the two scenes is what the lawyer manifested, because the request was identical. In the first, the reply gave the sender an express reason to look elsewhere, and the lawyer's inactivity afterward confirms it. In the second, the drafting and the forwarded draft are the only outward signs the sender has, and all of them point toward an engagement. Any private plan the lawyer had to decline never reached the sender and changes nothing.

The first two steps build the inference, and the last two test it against the surrounding circumstances, which is why the same request can produce a promise in one stem and none in another.