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A Conditional Intent to Perform A Conditional Intent to Perform
Gregory Klass
Georgetown University Law Center
, gmk9@law.georgetown.edu
Georgetown Public Law and Legal Theory Research Paper No. 09-08
This paper can be downloaded free of charge from:
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http://ssrn.com/abstract=1364456
15 Legal Theory 107-147 (2009)
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doi:10.1017/S1352325209090089
A CONDITIONAL INTENT TO
PERFORM
Gregory Klass*
Georgetown University Law Center
The doctrine of promissory fraud holds that a contractual promise implicitly repre-
sents 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” con-
ditions on intentions in general and then explains why foreground conditions on a
promisor’s intent to perform are likely to result in material promissory misrepresenta-
tion, while background conditions are not. The difference between foreground and
background conditions lies in whether the agent accepts the satisfaction of the con-
dition 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 preper-
formance deliberations and investment in the transaction, as well as her willingness
to seek agreement with the promisee on how to fill contractual gaps.
There seems an obvious difference between conditional and unconditional
intentions. Consider the two reports “I intend to go to the faculty meeting”
and “I intend to go to the faculty meeting if I finish preparing my class.” The
first says that I simply mean to be there; the second that I mean be there
in some possible futures and not in others. But perhaps the difference
is only apparent. While my report that I intend simpliciter to go to the
meeting does not describe my intention as conditional, it would be silly
to understand me as saying that I mean to go no matter what. I do not
intend to go if the meeting is cancelled. Nor do I expect to go if something
more important comes up. I intend to go to the meeting ceteris paribus:
unless something occurs to prevent me or to cause me to reconsider. A bit
of reflection suggests that one never intends to do something come what
*This article has benefited from the input of Michael Bratman, Luca Ferrero, David Owens,
and Gideon Yaffe as well as anonymous referees from L
EGAL THEORY. My thanks to all, and
to Addison Draper and Gregory Zlotnick for their research assistance and Ian Ayres for our
earlier collaboration.
107
http://journals.cambridge.org
108 GREGORY KLASS
may—that all intentions are subject to innumerable implicit ceteris paribus
conditions. And now it looks as though the difference between the two
cases lies not in the intention itself but in the way I describe it. While a
report “I intend x if C” provides more information about when the speaker
is likely to x, the attitude it reports is not different in kind from a nominally
unconditional intention.
The slipperiness in the distinction between conditional and uncondi-
tional intentions creates a puzzle in a corner of contract theory. According
to the doctrine of promissory fraud, a contractual promise implicitly repre-
sents a present intent to perform. To make a promise one intends to breach
is to tell a lie. A plaintiff who can prove promissory fraud can recover not
only compensatory damages for the breach but also punitive damages; in
some cases an insincere promisor can even face criminal penalties. The puz-
zle is whether an undisclosed condition on the promisor’s intent to perform
should result in liability for promissory fraud.
Consider the facts in Hillcrest Center, Inc. v. Rone, in which the owner
of a commercial building told a tenant that she intended to purchase an
adjacent lot to provide parking for the tenant.
1
The Alabama Supreme
Court upheld a jury finding of fraud based on evidence that the defendant
“never intended to purchase the adjacent lot to provide the additional
parking unless she was able to secure a tenant for the proposed building to be
built on the adjacent lot (a ‘contingency’ [the owner] never communicated
to the [tenant]).”
2
The holding feels right: the defendant represented that
she intended to purchase the lot, not that she intended to purchase it only
if certain conditions were satisfied. But if this is correct, we need to be able
to say why this condition on the defendant’s intent resulted in a material
misrepresentation while the ceteris paribus conditions that attach to all
intentions do not.
In our book, Insincere Promises: The Law of Misrepresented Intent, Ian Ayres
and I suggest that the difference involves informational disparities.
3
If every
representation of an unconditional intention includes an implicit ceteris
paribus clause, then the competent hearer is on notice that the speaker’s
intention is so conditioned. And because parties enter into agreements with
a shared background understanding as to what might cause the promisor
to choose not to perform or prevent her from doing so, they have a shared
understanding of the extension of that implicit ceteris paribus—of what
counts as “other things being equal.” Neither of the Hillcrest parties would
have expected the defendant to purchase the adjacent lot if it were de-
stroyed by flood or even if its price suddenly skyrocketed (though in the
latter case, the defendant might still be liable for breach of a promise to
1. Hillcrest Center, Inc. v. Rone, 711 So. 2d 901, 903 (Ala. 1997).
2. Id. at 906.
3. I
AN AYRES &GREGORY KLASS,INSINCERE PROMISES:THE LAW OF MISREPRESENTED INTENT
26–29 (2005).
http://journals.cambridge.org
A Conditional Intent to Perform
109
purchase). This explains the court’s emphasis on the fact that the defen-
dant “never communicated” that her intent to purchase was conditioned
on finding a tenant for the property. Because that condition fell outside the
mutually understood scope of the implicit ceteris paribus, it rendered false
the defendant’s representation that she intended to perform.
This information-based account was of a piece with our project in Insincere
Promises: to develop a theory of promisor representations of intent, not of
promisor intentions per se. For this reason, however, the explanation is
incomplete. There is a strong intuition that there is an intrinsic difference
between the implicit ceteris paribus conditions that attach to all intentions
and more salient conditions on a person’s intent such as the undisclosed
condition in Hillcrest—a difference not only in what is known about the
conditions but between ways that intentions are conditional. This article
argues that this intuition is correct. The goal is to provide a theory of
the intuitive distinction between what I henceforth call “background” and
“foreground” conditions and to explain the relation of each to the law of
promissory fraud.
My account of the distinction builds on Michael Bratman’s planning
theory of intention.
4
In our book, Ayres and I write that a “promisor’s
intention to perform is material only because it entails her being likely
to perform, only because it provides the promisee crucial information for
evaluating [the probability of performance].”
5
This claim focuses on the
fact that intentions tend to cause persons who have them to do the acts
intended.
6
A person’s intention to x makes it more likely that she will x.
Standing alone, this is a fairly anemic picture of future-directed intentions.
In it, a future-directed intention operates something like a billiard ball: once
put in motion, the intention rolls along in a straight line without disturbing
the rest of the table until it reaches its target, unless it is knocked off
course by unanticipated circumstances or the player changes her mind and
grabs it mid-course. Bratman’s planning theory argues that things are more
complex. A person’s future-directed intentions not only cause her to do the
intended act but shape her practical deliberations and behavior leading up
to that point in a way that ensures the coherence and effectiveness of her
practical attitudes as a whole. This is what it means to have an intention. On
Bratman’s theory, the billiard ball on the way to its target interacts with the
table as a whole in a way that both increases the chances it will reach the
target and organizes the other balls in light of the shot.
This theory allows for a more complete description of the difference
between background and foreground conditions on an agent’s intention.
The difference lies in the consequences of each for the agent’s practical
deliberations. A person’s intention is background-conditional when she
4. This is laid out in MICHAEL E. BRATMAN,INTENTION,PLANS, AND PRACTICAL REASON (1987).
5. A
YRES &KLASS, supra note 3, at 35.
6. I use “cause” here in the broadest sense possible. I mean to suggest nothing about the
sort of causal mechanisms at work.
http://journals.cambridge.org
110 GREGORY KLASS
assumes for the purpose of her practical deliberations that the condition will
or that it will not be satisfied. Her intention is foreground-conditional when
she treats the satisfaction of the condition as an open question. Foreground
conditions on an agent’s intention have two important consequences for
her ongoing deliberation and behavior: they permit her to plan rationally
for more possible futures, including futures in which she does not perform
the act in question, and they reduce the rational pressure on her to intend
the necessary means of acting.
This theory suggests three reasons why a promisee should care more about
a foreground condition than a background condition on the promisor’s
intent to perform. First, foreground conditions are likely to affect the
promisor’s preperformance practical deliberations and investments in the
transaction in a way that further decreases the likelihood of performance.
Second, the promisor herself has made a (perhaps reflexive) judgment
that the chance the condition will not be satisfied is high enough to war-
rant taking it into account in her own deliberations—prima facie evidence
that the promisee would also do well to consider that possibility. Finally,
in relational contracts a foreground condition on the promisor’s intent to
perform reduces the rational pressure to fill contract gaps in a way that
agrees with the plans and preferences of the promisee. These conclusions
suggest a new account of what, if anything, a promise implicitly represents
about any conditions on the promisor’s intent to perform. They also answer
Aditi Bagchi’s and Richard Craswell’s suggestions that, from the consequen-
tialist perspective Ayres and I adopt, the legal question should be not the
promisor’s intent to perform but only the probability of performance.
7
After I describe the shortcomings of two other theories of background
and foreground intentions in Section I of this article, Section II lays out
the analytic groundwork for a planning theory of conditional intentions,
which I then develop in Section III. This general theory provides the basis
for Section IV’s reexamination of the legal relevance of a conditional intent
to perform. Readers interested only in the theory of intentions might skip
Section IV; readers whose primary interest is in contract law might skip
Section I, read only the summary of Section III, and focus their attention
on Section IV.
The analysis in this article has benefited from two recent works of condi-
tional intentions. Gideon Yaffe applies Bratman’s planning theory of inten-
tions to provide a new analysis of how conditional intentions should figure
into criminal mens rea inquiries.
8
While my account relies on some of his
insights, Yaffe does not tackle the problem of this article: the difference
7. Aditi Bagchi, The Accidental Promise: Remaking the Law of Misrepresented Intent, 2008 U.
I
LL.L.REV. 985 (reviewing AYRES &KLASS, supra note 3); Richard Craswell, Taking Information
Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere,92V
A.L.REV. 565
(2006).
8. Gideon Yaffe, Conditional Intent and Mens Rea,10L
EGAL THEORY 273 (2004).