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Promissory Fraud Without Breach (with Gregory Klass), 2004 Wisconsin Law Review 507 (2004)


It is no doubt wrong to conflate promise breaking and lying. What parent has not heard a child say with no small degree of indignation, "You lied to me; you promised you would . . . ." Accusations of this kind can be evidence of conceptual confusion: You might be a scoundrel for breaking your promise, but you are not thereby a liar—someone who knowingly misrepresents an existing fact. The act of promising to do, or to refrain from doing, something in the future does not, by itself, give the promisor even the opportunity to lie.

But the action for promissory fraud suggests that our impulse to call certain promise-breakers "liars" is often correct. Promising is a single act with multiple meanings. According to the literal meaning, the speaker of the words "I promise to . . ." puts herself under a certain obligation—an obligation to do the act promised. In many contexts, however, a promise to do something also represents an intent to do it. And as Lord Bowen stated in an early promissory fraud case, "the state of a man's mind is as much a fact as the state of his digestion." By saying something about the promisor's present intent, the act of promising creates the opportunity to lie.

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