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The doctrine of promissory fraud holds that a contractual promise implicitly represents an intent to perform. A promisor’s conditional intent to perform poses a problem for that doctrine. It is clear that some undisclosed conditions on the promisor’s intent should result in liability for promissory fraud. Yet no promisor intends to perform come what may, so there is a sense in which all promisors conditionally intend to perform.

Building on Michael Bratman’s planning theory of intentions, this article provides a theoretical account of the distinction between “foreground” and “background” conditions on intentions in general and then explains why foreground conditions on a promisor’s intent to perform are likely to result in material promissory misrepresentation, while background conditions are not. The difference between foreground and background conditions lies in whether the agent accepts the satisfaction of the condition for the purposes of her practical reasoning. A promisor’s nonacceptance of a condition on her intent to perform is material because it is likely to affect her preperformance deliberations and investment in the transaction, as well as her willingness to seek agreement with the promisee on how to fill contractual gaps.

Publication Citation

15 Legal Theory 107-147 (2009)

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Contracts Commons