23 September 2008

Bullshit Promises

Bullshit promises are promises that are in a certain sense insincere even though they are not lying promises, at least not in a sense that would be actionable under the tort of promissory fraud. Promissory fraud is available in cases where a party makes a promise that it has no intention to keep, and it does so in order to deceive the promisee about its intentions. But it is quite common today for parties, especially companies dealing with consumers, to make promises that are not lying promises in that the promisor is not concealing an intention not to perform, but that are nevertheless insincere. In such cases a party uses promissory language but elsewhere reserves the right not to perform, or to change the terms of performance unilaterally as it sees fit.

Such promises are not necessarily lying, especially if the promisor does not at the time have a specific plan to change the terms, but they are usually bullshit. By simply leaving its options open a party can help itself to the benefits of promissory language without being subject to the norms associated with promising, in particular some sort of commitment to a particular course of action. The tort of promissory fraud as now applied is not able to address this problem, but we will suggest minor modifications in both contract and tort that should help. At the very least, it is time courts and commentators recognized the phenomenon of bullshit promises and the potential challenges they create.

From here.

The issue is less theoretical than it seems. Not so long ago, I litigated a case where opposing counsel argued strenuously that its client had made a bullshit promise, while I argued on behalf of my client that the promise made had real effect.

Another kindred contract drafting practice is to include a contract term, such as "this contract may only be modified in writing" that has been clearly established under applicable law to be invalid or unenforceable, but which may impact an uncounseled person's evaluation of their rights (or even that of a judge who rarely deals with contract law).

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