[lit-ideas] Re: Can, logically, there be any such thing as a "performative contradiction"?


Richard H has given this for thought:-
"What about "the Undersigned hereby promises to undersign no promises" as a 
performative contradiction? By signing it one promises not to do X and one does 
X at the same time (X = to undersign a promise). One violates the terms of an 
agreement or contract by entering into the agreement or contract. Engagement 
entails violation, or, you make a commitment by breaking it."

Two points. 

First, in one construction "the Undersigned hereby promises to undersign no 
promises" would mean "the Undersigned hereby promises to undersign no _further_ 
promises": contracts or contractual terms of this type are well-known to the 
law, raising public policy issues as to whether they are excessively 'in 
restraint of trade'. But they do not raise or involve any contradiction.

Second, where "the Undersigned hereby promises to undersign no promises" is 
taken to mean "the Undersigned hereby promises to undersign no promises 
(including this one)" there is _perhaps_ a contradiction _of sorts_ but it is 
arguably not a "performative" contradiction because the agreement would be 
void. That is, such a promise that negates itself could not amount to a valid 
contractual promise since such a promise must, in law, be able to constitute 
'consideration' - and a promise that negates itself even as a promise arguably 
cannot constitute 'consideration' as part of any contract. 

A judge would have a construction choice: on the second construction there is 
no 'consideration' because there is no legally valid promise and thus the 
promise is not a 'performative' or 'operative', and thus the apparent 
contradiction in such a 'promise' is not a "performative contradiction".

Consider: 'X promises Y a gift of X's car' and 'X promises Y to give Y nothing' 
- are these both promises of a gift, or is the second the opposite {promise of 
no gift}? Compare 'X gives his car to Z on trust for Y' with 'X gives nothing 
to Z on trust for Y' - is the second a trust, or not a trust at all because 
"nothing" cannot be the subject-matter of a trust? 

Similarly, a 'promise' that negates itself may be said not to be a promise at 
all, and not to be a promise that can constitute 'consideration' [or be part of 
the 'subject-matter'] for any contractual agreement.   

--- On Sat, 30/5/09, Robert Paul <rpaul@xxxxxxxx> wrote:

> > The utterance "I do because father-in-law-to-be has a
> shotgun at my back" , or "I accept because otherwise Luca
> Brasi will ensure it is my brains on the contract", do not
> constitute genuine acceptance and so do not, in any strict
> sense, amount to a performative contradiction - rather they
> are imperfect or counterfeit or surrogate, or whatever,
> performatives.
> > They fall short of being genuine performatives and so
> cannot amount to a "performative contradiction".
> 
> This looks plausible, but the more I think about it the
> more these seem like genuine performatives. I say this,
> because contexts require specific contexts (this is obvious)
> in order to 'work,' e.g., one cannot sat, sitting in one's
> living room, with no ship in sight and no brief to christen
> one should there be, 'I hereby christen this ship the S. S.
> Brighton Rock,' and achieve anything relevant to ships and
> their christenings.

The point in the case of wedding and other contractual promises is that they 
are only 'operative' or constitutive or genuine "performatives" _if_ they are 
made without duress. Where the terms of the words of agreement make clear they 
are made only under duress, then the case is similar to the case of a promise 
that negates itself - negates not because it lacks the outward form of a 
promise but because of substantive legal rules as to what can constitute a 
valid promise or, conversely, rules as to what renders what might otherwise be 
a valid promise not valid. In Richard's example one such rule is the 
substantive rule that a contractual promise must amount to 'consideration' 
[which a promise that negates itself cannot]; in the wedding and other 
contractual examples it is the substantive rule that a 'promise' entered into 
under duress is not a valid
promise at all, and so there is no contract.

Imagine the groom promises 'I do' only because the shot-gun is in his back but 
subsequently wants to rely on the 'I do' because he is happy to be considered 
married (his bride dies on the wedding night and if married he inherits a 
million bucks). Can he? Or can the father of the bride object that the marriage 
is invalid, and the 'I do' therefore not a genuine performative, because of the 
shot-gun he was holding in the groom's back? Without having any legal authority 
to hand, I think on general principle the law must come down in favour of the 
father. Compare: I sign a contract at gun-point but want to enforce its terms 
which turn out to be (unexpectedly) favourable - can I? Arguably not, since I 
never entered into a valid contract in the first place.

> However, should one have been invited to christen a ship by
> those who have the authority to arrange such things, and
> finding oneself below the prow of the ship, champagne bottle
> in hand, send the bottle prow-ward, while crying out, before
> all assembled, 'I hereby christen this ship...,' then,
> ceteris paribus, one would have in saying this, done
> something, namely, christened a ship.

Christening a ship is perhaps less beset by substantive rules as to what 
constitutes a genuine performative, and so I leave this momentarily aside as 
being, inter alia, doubtful as an analogy and where no "performative 
contradiction" in a ship-Christening has been manifest.

Donal
Sunny Salop



------------------------------------------------------------------
To change your Lit-Ideas settings (subscribe/unsub, vacation on/off,
digest on/off), visit www.andreas.com/faq-lit-ideas.html

Other related posts: