“the objective theory of contract formation and
interpretation holds that the intention of the parties to a
contract or alleged contract is to be ascertained from their
words and conduct rather than their unexpressed intentions.”
approaches did, however, transform the availability of relief
for mistake, duress, and other grounds of avoidance.
Objective approaches to words spoken or written by only
one party are based on the reasonable expectations of the
the promisee. The latter perspective, focusing
on the expectation of the promisor, articulated by Dr. Paley,
had quite a following in the nineteenth century.
perspective of the promisee was articulated by Adam Smith
whose critique of the Will Theory, however, was not published
until the twentieth century. He said,
[w]e may observe here
that the obligation to perform a promise can not proceed from
the will of the person to be obliged, as some authors imagine.
For if that were the case a promise which one made without an
intention to perform it would never be binding.
to Smith, serious promises are binding
and the reason is
plain: they produce the same degree of dependance and . . .
In this article, I have argued against an intentionalistic theory of promises, such as the theory
of Searle, and of others inspired by him. Such a theory leads to a one sided approach, and is
unable to account for all the phenomena that count as promises. I have argued that in contract
law both the promissor and the promissee play a role of importance, but also that the
influence of their intentions is rather limited. I have then extrapolated my argument to
In the last section, I have offered some conjectures as to what may have contributed to the
intentionalistic aspect of Searle's theory. My last conjecture was that the ambiguity of the
word meaning may play a role. Let me end, in all modesty, by offering a suggestion that
might help English philosophers in solving the problems of linguistics, and their translators in
interpreting their solutions: the introduction of the word speaning for speaker's meaning
Perillo, The Origins of the Theory of Contract: Formation and interpretation, Fordham Law Review, Vol. 69,
No.2 November 2000.