Promises, Promises and Artificial Intelligence
Promises and moral versus legal obligations: the AI answers
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Question1: ‘do you have a moral obligation to keep a promise’? This is the answer from AI:
“Yes, there is a strong moral obligation to keep a promise. Generally, breaking a promise is considered morally wrong because it undermines trust and can cause harm to the person to whom the promise was made. This obligation stems from the idea that promises create a special relationship between the promisor and the promisee, granting the promisee a certain moral authority over the promisor’s conduct.”
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Question 2: ‘do you have a legal obligation to keep a promise’? This is the answer from AI:
“Generally, a simple promise is not legally binding unless it’s part of a formal contract with consideration (something of value exchanged) or made under seal (a deed). However, under certain circumstances, a court might enforce a promise if someone has relied on it to their detriment. This is often based on the principle of estoppel.”
The limits of AI
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It’s generally acknowledged that AI may not provide “the truth the whole truth and nothing but the truth” and the answer to question 2 is a small example of that. The AI answer may well be true as far as English law is concerned but it isn’t true for Scots law.
What does Scots law say about promises?
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A former Lord President, Scotland’s most senior judge, put it as follows (Cawdor v Cawdor 2007 SC 285):
“It is undoubted that the law of Scotland will recognise as obligatory a promise duly made. Delivery to or acceptance by the promisee is not necessary to the constitution of a promise.”
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The starting point is that a promise must be constituted in writing so as to be binding on the person making it. But that is not quite the end of the matter. It is possible to make a promise orally without its being committed to writing and for that promise to be legally binding if various conditions are satisfied.
A recent case on promises: Davies v Cassie [2025] CSOH 36
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In this case Ms Davies claimed that Mr Cassie had promised, on his death, to leave her most of his estate which was worth about £1.3m. The supposed promise had not been constituted in writing. But Ms Cassie claimed that a promise had nevertheless been made by things Mr Cassie had said.
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So in this case Ms Davies had two hurdles to jump. The first hurdle was for her to establish that what Mr Cassie had said amounted to a promise and the second hurdle would be for her to show that even although the promise was not in writing the necessary conditions were satisfied to make the promise binding on Mr Cassie.
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As it happened the judge decided that Ms Davies fell at the first hurdle and so the questions as to the conditions required to surmount the second didn’t have to be addressed. So this note now turns to consider what the “first hurdle” requirements are.
What is required to amount to a promise?
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The judge identified a need for a clear demonstration of promissory intent in order to found a valid promise:
“Since any promissory obligation is intention-based, the court’s task is to consider whether the evidence, objectively assessed, discloses an intention on the part of the alleged promisor to incur a legally binding engagement … That question, in my view, is to be decided on a consideration of the alleged promisor’s own words … I consider that a promise is binding only if the promisor’s own words are clear and unambiguous.”
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And, harking back to 17th century Scots law, the judge also referred to the three stages of expression of will which mark out the three stages characteristic of a promise: (i) desire, (ii) resolution, and (iii) engagement. It is the crucial third stage, of “engagement”, for which a court seeks evidence when examining whether a valid promise has been undertaken.
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This 17th century expression of the three stages required to establish a legally binding promise has been updated for the 21st century in a recent article (Respecting “Will”: Viscount Stair and Online Shopping, 2018 S.L.T. (News) 123) as follows:
“[Desire, resolution and engagement] can be seen as three successive steps taken (or, as the case may be, not taken) as exercises of will… This can be illustrated with a simple example such as online shopping. The shopper is attracted by various items (desire), and decides to purchase some by adding them to the basket (resolution). But to complete the operation of the will to purchase the items, the shopper has to commit with a further act, that is, pay for them (engagement). Without this final act, for example if the shopper realises that the total price is beyond the shopper’s desired spend, the shopper will abandon the whole process: the will is not efficacious.”
Back to Ms Davies and her claim that Mr Cassie had made a promise
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It was held that whilst Mr Cassie may well have said various things on various occasions which led Ms Davies to expect that she was to inherit most of his estate none of these amounted to clear words demonstrating the necessary “engagement” such as to amount to a legally binding promise.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Augustine Casiday: email amcc@mitchells-roberton.co.uk