Illusory promise? |
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Part of the common law series
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| Contract theory |
| Classical theory · Promise theory |
| Consent theory |
| Contract formation |
| Offer and acceptance · Mailbox rule |
| Mirror image rule · Invitation to treat |
| Consideration |
| Defenses against formation |
| Lack of capacity to contract |
| Duress · Undue influence |
| Illusory promise · Statute of frauds |
| Non est factum |
| Contract interpretation |
| Parol evidence rule |
| Integration clause |
| Excuses for non-performance |
| Mistake · Misrepresentation |
| Frustration of purpose · Impossibility |
| Illegality · Unconscionability |
| Accord and satisfaction |
| Rights of third parties |
| Assignment · Delegation |
| Novation · Third party beneficiary |
| Breach of contract |
| Anticipatory repudiation · Cover |
| Exclusion clause |
| Fundamental breach |
| Remedies |
| Liquidated damages · Penal damages |
| Specific performance · Rescission |
| Other areas of the common law |
| Tort law · Property law |
| Wills and trusts |
| Criminal law · Evidence |
| view / this template |
In contract law, an illusory promise is one that courts will not enforce. This is in contrast with a contract, which is a promise that courts will enforce. A promise may be illusory for a number of reasons. In common law countries this usually results from failure or lack of consideration (see also consideration under English law).
Illusory promises are so named because they merely hold the illusion of contract. For example, a promise of the form, "I will give you ten dollars if I feel like it." is purely illusory and will not be enforced as a contract.
It is a general principle of contract law that courts should err on the side of enforcing contracts. Parties entering into the arrangement presumably had the intention of forming an enforceable contract, and so the court should attempt to follow this intention. Methods of doing so include:
Implied-in-law "good faith" terms
Many contracts include "satisfaction clauses", in which a promisor can refuse to pay if he isn't subjectively satisfied with the promisee's performance. Strictly speaking, this is an illusory promise, since the promisor has no actual legal burden to pay if he chooses not to. However, courts will generally imply in law that the promisor must act in good faith, and only reject the deal if he is genuinely dissatisfied. As another example, if a contract promises a promisee a certain percentage of the proceeds of a promisor's business activities, this is illusory, since the promisor doesn't have to do anything - zero percent of zero is zero. However, courts will imply that the promisor promised a good-faith effort to try to make money, and cite him for breach of contract if he does absolutely nothing.
Implied-in-fact terms
Judges will often infer terms into the contract that the parties did not explicitly cite. For instance, in the "satisfaction clause" case, judges might infer that the parties intended a "reasonableness test" - that the clause could be satisfied if a reasonable person would be satisfied by the promisee's performance, regardless of whether the promisor himself asserts he is satisfied. (This interpretation is often used in cases in which a performance can be objectively evaluated, such as with the construction of a warehouse; the implied-in-law interpretation above is preferred where satisfaction is more subjective, as with the painting of a portrait.)
Bargaining for a chance
Many judges would consider the "bargaining for a percentage of the proceeds" example above an enforceable contract, even without an implied-in-fact or implied-in-law good faith term. They would view the opportunity to enter into a business relationship to itself be acceptable consideration. Put differently, the mere possibility that the promisor would do business is a valuable product of the bargain, even if he doesn't do anything. Of course, if the promisor entered into the relationship purely with the intent of fraudulently harming the promisee, he could be cited for fraud or bad faith principles which apply to all contracts.