What's the difference between promise and offer (in K)?

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bwv812
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Re: What's the difference between promise and offer (in K)?

Postby bwv812 » Wed Dec 17, 2008 12:35 am

zhensley wrote:A contract can be unilateral or bilateral.

A contract, generally, is formed when one party makes an offer. This offer is, generally, to perform some action or to make some promise.

Once the offer is accepted, it is a contract (if there is consideration).

It's not that it's promise + consideration. The promise can be consideration.

Suppose that I promise to do X (pay you $100) and you say "I accept". The problem with this is not that there is no consideration on my part; I've a promise and a promise can function as valuable consideration. (Thomas v. Thomas).

So, a unilateral contract may be formed when I offer to promise to do something if you perform some act (e.g., walk a mile). The promise is the consideration I offer in the formation of the contract.

That is: an offer is how you make a contract. You can offer to make a promise or to perform some act in exchange for some promise or performance. Promise is the consideration you offer.

I hope you're in my section; I really need the curve to save me.

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 12:42 am

bwv812 wrote:
zhensley wrote:A contract can be unilateral or bilateral.

A contract, generally, is formed when one party makes an offer. This offer is, generally, to perform some action or to make some promise.

Once the offer is accepted, it is a contract (if there is consideration).

It's not that it's promise + consideration. The promise can be consideration.

Suppose that I promise to do X (pay you $100) and you say "I accept". The problem with this is not that there is no consideration on my part; I've a promise and a promise can function as valuable consideration. (Thomas v. Thomas).

So, a unilateral contract may be formed when I offer to promise to do something if you perform some act (e.g., walk a mile). The promise is the consideration I offer in the formation of the contract.

That is: an offer is how you make a contract. You can offer to make a promise or to perform some act in exchange for some promise or performance. Promise is the consideration you offer.

I hope you're in my section; I really need the curve to save me.


I think that if you think what I've said is wrong, then you'll be surprised come January.

The problem is not that a promise is not consideration, but a gratuitous promise lacks consideration because nothing was given IN RETURN. As Thomas v. Thomas from England clearly states a promise may be valuable consideration.

If I make a promise to give you $100 in exchange for your performance of walking a mile, then we've made a unilateral contract. If I make a promise to give you $100 in exchange for your promise to walk a mile, then we've made a bilateral contract.

So, I'm not really sure what you disagree with.

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 12:47 am

Perhaps the thing that's tripping you up is when I said:

Suppose that I promise to do X (pay you $100) and you say "I accept". The problem with this is not that there is no consideration on my part; I've a promise and a promise can function as valuable consideration. (Thomas v. Thomas).


Perhaps I should have said:

The problem with this is not that there is no consideration on my part; I've a promise and a promise can function as valuable consideration. (Thomas v. Thomas). The problem is, however, that there is no consideration on YOUR part.


If a promise can't be consideration, then how is there a bilateral contract? What's the consideration if not a promise when we make a contract where I promise to do x and you promise to do y?

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Re: What's the difference between promise and offer (in K)?

Postby bwv812 » Wed Dec 17, 2008 12:53 am

zhensley wrote:
bwv812 wrote:
zhensley wrote:A contract can be unilateral or bilateral.

A contract, generally, is formed when one party makes an offer. This offer is, generally, to perform some action or to make some promise.

Once the offer is accepted, it is a contract (if there is consideration).

It's not that it's promise + consideration. The promise can be consideration.


Suppose that I promise to do X (pay you $100) and you say "I accept". The problem with this is not that there is no consideration on my part; I've a promise and a promise can function as valuable consideration. (Thomas v. Thomas).

So, a unilateral contract may be formed when I offer to promise to do something if you perform some act (e.g., walk a mile). The promise is the consideration I offer in the formation of the contract.

That is: an offer is how you make a contract. You can offer to make a promise or to perform some act in exchange for some promise or performance. Promise is the consideration you offer.

I hope you're in my section; I really need the curve to save me.


I think that if you think what I've said is wrong, then you'll be surprised come January.

The problem is not that a promise is not consideration, but a gratuitous promise lacks consideration because nothing was given IN RETURN. As Thomas v. Thomas from England clearly states a promise may be valuable consideration.

If I make a promise to give you $100 in exchange for your performance of walking a mile, then we've made a unilateral contract. If I make a promise to give you $100 in exchange for your promise to walk a mile, then we've made a bilateral contract.

So, I'm not really sure what you disagree with.

You promise to give me $100. I say "I accept!" You imply this is a K, since "[t]he promise can be consideration."
This is what I disagree with. You just ignored that there must be mutually induced promises/acts, and fundamentally missed the point that when we talk about lack of consideration we mean lack of mutual consideration.

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 1:02 am

bwv812 wrote:
zhensley wrote:
bwv812 wrote:
zhensley wrote:A contract can be unilateral or bilateral.

A contract, generally, is formed when one party makes an offer. This offer is, generally, to perform some action or to make some promise.

Once the offer is accepted, it is a contract (if there is consideration).

It's not that it's promise + consideration. The promise can be consideration.


Suppose that I promise to do X (pay you $100) and you say "I accept". The problem with this is not that there is no consideration on my part; I've a promise and a promise can function as valuable consideration. (Thomas v. Thomas).

So, a unilateral contract may be formed when I offer to promise to do something if you perform some act (e.g., walk a mile). The promise is the consideration I offer in the formation of the contract.

That is: an offer is how you make a contract. You can offer to make a promise or to perform some act in exchange for some promise or performance. Promise is the consideration you offer.

I hope you're in my section; I really need the curve to save me.


I think that if you think what I've said is wrong, then you'll be surprised come January.

The problem is not that a promise is not consideration, but a gratuitous promise lacks consideration because nothing was given IN RETURN. As Thomas v. Thomas from England clearly states a promise may be valuable consideration.

If I make a promise to give you $100 in exchange for your performance of walking a mile, then we've made a unilateral contract. If I make a promise to give you $100 in exchange for your promise to walk a mile, then we've made a bilateral contract.

So, I'm not really sure what you disagree with.

You promise to give me $100. I say "I accept!" You imply this is a K, since "[t]he promise can be consideration."
This is what I disagree with. You just ignored that there must be mutually induced promises/acts, and fundamentally missed the point that when we talk about lack of consideration we mean lack of mutual consideration.


No, you just didn't read clearly enough. Let me quote what I said:

Suppose that I promise to do X (pay you $100) and you say "I accept". The problem with this is not that there is no consideration on my part; I've a promise and a promise can function as valuable consideration. (Thomas v. Thomas).


I didn't say that this was a contract. Nor did I 'imply' that this was a contract. If you read the context, the context was whether a contract needs to be a promise PLUS consideration as if consideration was something OTHER THAN a promise. Consideration CAN BE something other than a promise, e.g., performance of some act as in a unilateral contract.

My point was that promise IS consideration. Note that I did not say that there was no problem with me saying "I offer you $100" and you say "I accept." No. I said that the problem is not that there is no consideration ON MY PART. My promise can function as consideration. I mean it's an overly simplistic example because I technically didn't say 'I promise you $100 in exchange for X', but that's not the point. The point I was focusing on is that a promise can be consideration, so it's actually really not quite accurate to say that a contract is a promise PLUS consideration.

So (to make it a bit more explicit) if I were to say, "I'll give you $100 if you do x." If you say 'I accept' but don't do X, then there's no contract, but the problem is NOT that I haven't offered consideration. My promise is my consideration. The problem is that you haven't offered consideration (because here it's a unilateral contract that you didn't perform).

So, I never said that a gratuitous promise is a contract. What I was stating was that a promise is consideration. So to say promise plus consideration isn't the clearest way to put it because if we both make (valid) promises, then there is no extra consideration needed. IN that case, it's just promises = contract (as long as there is mutuality of obligation, etc.).
Last edited by zhensley on Wed Dec 17, 2008 1:09 am, edited 1 time in total.

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 1:06 am

You can have lack of consideration without having lack of mutual consideration (EDIT: meaning that one can offer valuable consideration while the other doesn't) That is, I can offer not to sue you for some claim that we both know is bogus if you promise to pay me $100. For whatever reason, you make the promise to pay $100. There is consideration for your part. I just didn't offer any valuable consideration on my part.

Or, again, nominal consideration. You promise to sell me your house for $1 plus other good and valuable consideration. Your promise to sell would be consideration, but my promise to buy for $1 wouldn't be.

Again, my only point was that when someone says something like: Contract is a promise plus consideration, it can be misleading as if consideration was something in addition to a promise (it can be as in a unilateral contract, but a promise can function as consideration).
Last edited by zhensley on Wed Dec 17, 2008 1:12 am, edited 2 times in total.

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Re: What's the difference between promise and offer (in K)?

Postby underdawg » Wed Dec 17, 2008 1:08 am

um

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Re: What's the difference between promise and offer (in K)?

Postby bwv812 » Wed Dec 17, 2008 1:22 am

zhensley wrote:A contract, generally, is formed when one party makes an offer. This offer is, generally, to perform some action or to make some promise.

Once the offer is accepted, it is a contract (if there is consideration).

It's not that it's promise + consideration. The promise can be consideration.

Suppose that I promise to do X (pay you $100) and you say "I accept".

ok, superstar, let's break it down.

"[An] offer is, generally, to perform some action or to make some promise."

Therefore, a promise to pay $100 is an offer.

"A contract, generally, is formed when one party makes an offer."

Thus, the offer to pay $100 forms a contract.

"Once the offer is accepted, it is a contract (if there is consideration)" + "The promise can be consideration."

So, because the promise is consideration and the offer is accepted, there is a contract. And all because you offered me $100 and I said "I accept."

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 1:36 am

bwv812 wrote:
zhensley wrote:A contract, generally, is formed when one party makes an offer. This offer is, generally, to perform some action or to make some promise.

Once the offer is accepted, it is a contract (if there is consideration).

It's not that it's promise + consideration. The promise can be consideration.

Suppose that I promise to do X (pay you $100) and you say "I accept".

ok, superstar, let's break it down.

"[An] offer is, generally, to perform some action or to make some promise."

Therefore, a promise to pay $100 is an offer.

"A contract, generally, is formed when one party makes an offer."

Thus, the offer to pay $100 forms a contract.

"Once the offer is accepted, it is a contract (if there is consideration)" + "The promise can be consideration."

So, because the promise is consideration and the offer is accepted, there is a contract. And all because you offered me $100 and I said "I accept."


I don't know why you're looking for a fight. Do you really not have enough to do? I'll say it again, because, apparently, you didn't read what I just posted.

Once someone makes an offer, then that's the start of contract formation. In order for an honest-to-God contract to exist, the offer must be accepted. And then as I put in parentheses "If there is consideration".

So, if I make an offer that is supported by consideration and and you make an acceptance supported by consideration, then we have an honest-to-God contract.

Now, as I said before the example of 'I offer to pay you $100' is a bit simplistic, but that's because I bracketed things that I wasn't talking about. Of course, the offer has to be an offer to make a promise for a promise or to perform for a promise, etc. But I wasn't talking about that. Just like I wasn't talking about the legality of the things promised, etc. Nor did I talk about possible terminations of offers, or promissory estoppel or anything else that I wasn't talking about. In every day conversation, you bracket things that aren't being disputed at the moment.

As I've stated before, my only concern was to clarify an earlier comment that made it seems like consideration was something in addition to a promise. That is, for my offer to be supported by consideration, then I needed to make a promise plus something else. The promise is my consideration. That's what a bilateral contract is. I make a promise in exchange for a promise from you. These promises are our consideration.

Once it became clear to me that you got hung up (apparently) on the fact that I didn't include the promise in exchange for something else, I brought up several examples: nomination consideration is one of them. I offer to promise to pay you $1 plus other good and valuable considerations if you promise to sell me your house. You accept by giving me this promise. Your acceptance is supported by consideration because your promise is your consideration. My offer is not supported by consideration, because the courts determined that nominal consideration (like paying $1 for a house) is not kosher, and so my promise to pay $1 can not function as consideration.

So, yes, if I simply say, "I'll give you $100" and you say "I agree" the fact that I didn't make my offer in exchange for something means there is no contract because there was no proper offer. But since that wasn't being disputed, that was irrelevant for my post. I wasn't making any point about that. I was simply making the point (which should have been covered within the first few weeks of your class) that a promise can function as valuable consideration, and you don't need a promise PLUS some other consideration to make your offer (or your acceptance) supported by consideration.

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Re: What's the difference between promise and offer (in K)?

Postby cannoneer » Wed Dec 17, 2008 1:57 am

OP: look to uva4L and snotrocket's posts for an answer.

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 2:09 am

cannoneer wrote:OP: look to uva4L and snotrocket's posts for an answer.


This is incorrect. UVA defined promise as: I give you X for nothing.

If a bilateral contract is that I make a promise in exchange for a promise from you, then UVA's idea of a bilateral contract is: I give you X for nothing for you giving me Y for nothing. That doesn't make sense.

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Re: What's the difference between promise and offer (in K)?

Postby cannoneer » Wed Dec 17, 2008 2:19 am

Er, zhensley, that's an exchange of two promises. It's a contract because A's promise is conditioned on B's promise. The condition "element" isn't "part" of either promise.

Think about promissory estoppel for a minute. That doctrine makes enforceable a promise when there's no consideration for the promise. E.g., A makes a promise to B, and B doesn't make a promise in return. Instead, he relies on A's promise in a way that satisfies the requirements of the doctrine. That makes A's promise (I'll give you X for nothing) binding.

Edit: I should note that I failed my contracts exam over a week ago, so beware.

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 2:25 am

cannoneer wrote:Er, zhensley, that's an exchange of two promises. It's a contract because A's promise is conditioned on B's promise. The condition "element" isn't "part" of either promise.

Think about promissory estoppel for a minute. That doctrine makes enforceable a promise when there's no consideration for the promise. E.g., A makes a promise to B, and B doesn't make a promise in return. Instead, he relies on A's promise in a way that satisfies the requirements of the doctrine. That makes A's promise (I'll give you X for nothing) binding.

Edit: I should note that I failed my contracts exam over a week ago, so beware.


A couple of things. Right, but UVA said that a promise was, and I quote, "I'll give you X for nothing." If that is a promise, or as they put it, promise: I'll give you X for nothing. Then an exchange of promises would be "I'll give you X for nothing in exchange for you giving me Y for nothing." That doesn't make sense. What I'm pointing out is that how UVA defined promise is really a gratuitous promise. I can promise to give you X for Y. That's a promise that could serve as either an offer or acceptance.

As far as promissory estoppel: there are two schools of thoughts. First says that promissory estoppel IS consideration. The second is that it is in place of consideration. Either way, it's really irrelevant to the point at issue.

My response to UVA's definition or whatever of a promise is that it's a specific species of the genus of promise in regards to contracts. If you want to know what the difference between promise and offer (as was the question of the OP), then UVA's answer is misleading. Because in UVA's case, a promise cannot be an offer. However, a promise CAN be an offer.

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Re: What's the difference between promise and offer (in K)?

Postby bwv812 » Wed Dec 17, 2008 2:25 am

zhensley wrote:I don't know why you're looking for a fight. Do you really not have enough to do? I'll say it again, because, apparently, you didn't read what I just posted.

It's not my fault that you don't know how to write and said something that was misleading, at best. Objections were made, and you clarified. That doesn't make your initial response any less dumb, especially since others had already answered the question much better than you have.

Your latest response is pretty dumb, too. Or maybe we're all dumb for disagreeing with you. I'm comfortable with you thinking that, as long as you stop posting here and confusing things for us people who are even dumber than us but want some help so they can become as dumb as everyone other than you.

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Re: What's the difference between promise and offer (in K)?

Postby cannoneer » Wed Dec 17, 2008 2:30 am

1.) Do you agree that a statement like "I'll give you X for nothing" can be made binding under PE?
2.) Do you agree that PE makes "promises" binding?

If yes, then "I'll give you X for nothing" is a promise in at least one sense. If you want, there are a couple of restatement sections that deal with promissory estoppel for promises and offers. In the comments to the two sections, I bet the drafters made clear what the difference between an offer and a promise is. I'm pretty sure what uva4L and snotrocket is consistent with what's in the restatement. I don't remember the section numbers, though - one is 90, I think.

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 2:35 am

cannoneer wrote:1.) Do you agree that a statement like "I'll give you X for nothing" can be made binding under PE?
2.) Do you agree that PE makes "promises" binding?

If yes, then "I'll give you X for nothing" is a promise in at least one sense. If you want, there are a couple of restatement sections that deal with promissory estoppel for promises and offers. In the comments to the two sections, I bet the drafters made clear what the difference between an offer and a promise is. I'm pretty sure what uva4L and snotrocket is consistent with what's in the restatement. I don't remember the section numbers, though - one is 90, I think.


I mean, maybe it's late and no one is really reading each others posts. Of course I believe that "I'll give you X for nothing" is a promise. I said that in my previous post. What I said is that it's an example of a kind of promise. That's like me saying, "Yes, an apple is a kind of fruit, but fruit is not equal to an apple." So, when you say that in contracts, a promise is equal to "I give you X for nothing" then you are mistaken. That is a KIND of a promise (or as I put it, it's a species of the genus promise). And as I made clear, if that is simply what a promise is (as opposed to being a kind of promise) then a bilateral contract would be this silliness: "I promise to give you X in exchange for nothing in exchange for you giving me Y in exchange for nothing." It's absurdity.

Again, YES, "I will give you X for nothing" is a KIND of promise. That's not the point. Just as an apple is a KIND of fruit, it is not equal to fruit.

SO, one KIND of promise (like "I'll give you X for nothing") cannot constitute an offer, whereas another KIND of promise (like "I'll give you X for Y") CAN constitute an offer.

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Re: What's the difference between promise and offer (in K)?

Postby cannoneer » Wed Dec 17, 2008 2:37 am

SO, one KIND of promise (like "I'll give you X for nothing") cannot constitute an offer, whereas another KIND of promise (like "I'll give you X for Y") CAN constitute an offer.


You're right, I may have missed some things. This here ^^^ is the whole point: it's what distinguishes promises from offers!

What are some other species of the genus promise? (lmao)

Edit: I think I've figured it out: you're calling both promises and offers "promises," maybe?
Last edited by cannoneer on Wed Dec 17, 2008 2:40 am, edited 1 time in total.

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 2:40 am

cannoneer wrote:
SO, one KIND of promise (like "I'll give you X for nothing") cannot constitute an offer, whereas another KIND of promise (like "I'll give you X for Y") CAN constitute an offer.


You're right, I may have missed some things. This here ^^^ is the whole point: it's what distinguishes promises from offers!

What are some other species of the genus promise? (lmao)


You're still missing the point (or, perhaps, I just don't understand what you're saying). You seem to think that promise = gratuitous promise. That's just not the case. Some promises are gratuitous promises. Some are not.

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Re: What's the difference between promise and offer (in K)?

Postby cannoneer » Wed Dec 17, 2008 2:41 am

Yeah, I am missing the point. I still think the OP won't go wrong if he goes by uva4l and snotrocket's posts, though, and ignores all of the rambling on the second page, mine included. :D

Edit: also, I'd never heard of gratuitous promises, so I just ignored that stuff. Sorry!

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 2:47 am

cannoneer wrote:Yeah, I am missing the point. I still think the OP won't go wrong if he goes by uva4l and snotrocket's posts, though, and ignores all of the rambling on the second page, mine included. :D


I think UVA's later post is good. Their first post was misleading. I mean, as long as in the course of that conversation, you understand that when you say 'promise' you don't really mean promise, but 'gratuitous promise', then they'll be OK. The only problem is, within the same subject (contracts) you'll be using the word 'promise' in two senses: 1. gratuitous promises alone and 2. promise in general. That, to me, is more confusing.

I'm sure I don't disagree with the substance of their posts, but language (from several posters) was being used in a not very strict sense. An example of which was UVA's first definition of promise and then plugging that definition into a bilateral contract, results in craziness. But, UVA (or any rational person) would reject that a bilateral contract would be 'I will give you X in exchange for nothing in exchange for you giving me Y in exchange for nothing'. Right? No one would accept that. That shows, I think, that someone is playing too fast and loose with their definition of 'promise'. What they probably meant was 'gratuitous promise'. A promise CAN (meaning some promises) function as consideration in a contract; a gratuitous promise cannot. Draw a euler diagram or something.

EDIT: A gratuitous promise would be like "I'll give you $500 right now." It's a promise that I am not obligated by legal duty to perform.

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Re: What's the difference between promise and offer (in K)?

Postby cannoneer » Wed Dec 17, 2008 2:50 am

I will give you X in exchange for nothing in exchange for you giving me Y in exchange for nothing


The thing is, if it's a bilateral contract, the "for nothings" drop out, because the promises are in exchange for each other. But if one of the parties didn't make a promise, then you'd add in a "for nothing" to the promise made by the promising party. If that makes any sense, which I hope it does, because otherwise I made straight Cs.

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 2:56 am

cannoneer wrote:
I will give you X in exchange for nothing in exchange for you giving me Y in exchange for nothing


The thing is, if it's a bilateral contract, the "for nothings" drop out, because the promises are in exchange for each other. But if one of the parties didn't make a promise, then you'd add in a "for nothing" to the promise made by the promising party. If that makes any sense, which I hope it does, because otherwise I made straight Cs.


No, you are correct in that a REAL bilateral contract it's something like 'I'll promise to give you X in exchange for you promising to give me Y.'

I wasn't commenting on that. What I was doing was called a reductio ad absurdum. That is, I accepted UVA's definition of promise in order to deduce an absurd conclusion: namely the silly example of a bilateral contract that I keep bringing up. That's an absurd conclusion. No one would accept it. The reductio is a logical argument that shows that the assumed premise (in this case, UVA's initial definition of 'promise') is, in fact, incorrect.

A promise could be "I will do X for nothing" It could also be "I will do X for Y". But if you take UVA's initial definition of promise as a promise MUST be "I will do X for nothing" then you get an absurd conclusion.


The 'for nothings' don't drop out; they were never there in the sense that it is not part of the definition of a promise that it be 'for nothing'. That's just one type of promise.

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Re: What's the difference between promise and offer (in K)?

Postby cannoneer » Wed Dec 17, 2008 2:58 am

A promise could be "I will do X for nothing" It could also be "I will do X for Y".


I think this is really just a debate about semantics. The second thing - "I will do X for Y" is what the restatement drafters call an "offer," and the first is what they call a "promise." See section 90.

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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 3:01 am

cannoneer wrote:
A promise could be "I will do X for nothing" It could also be "I will do X for Y".


I think this is really just a debate about semantics. The second thing - "I will do X for Y" is what the restatement drafters call an "offer," and the first is what they call a "promise." See section 90.


Well of course it's about semantics. Whenever you talk about these things, it's always semantics. My point is that it's misleading to use the same word in two difference senses without distinguishing them. Logicians have a name of this fallacy, and that's equivocation.

Of course, some promises ARE offers. But just think for a minute. If I offer, "I will do X for Y". And you accept. Then someone asks you, "What was the consideration that zhensley offered?" You'll respond, "His promise to do X."

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Re: What's the difference between promise and offer (in K)?

Postby cannoneer » Wed Dec 17, 2008 3:04 am

If you're distinguishing between offers and promises, it helps if you don't think of offers as a kind of promise.




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