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Introduction
English contract law is based on bargains – the foundation of English contract law is said to be bargain theory. Look at any textbook on contact law and that is what you will be told. However, there are a significant number of cases that don’t seem to fit the bargain theory mould. Those case appear to establish obligations based upon reliance.
This post looks beyond English contract law. It looks at how a reliance based ethics meshes well with the ethics of Jean Paul Sartre. Where relevant it will comment on existentialist thought more generally.
Very importantly, the post also examines the significance of a reliance based ethics for those who are ageing.
But first, let’s go back to Bargain theory and see how reliance based obligations are important in contract law.
A bargain is an exchange. An exchange is where I give you something in return for your giving me something. The exchange may involve an exchange of promises. We can exchange pretty much whatever we want – although there are exceptions based on illegality and sometimes morality.
English law will not usually question the value of what we exchange. Consideration (the things we exchange) need not be adequate, English law proudly states.
So, you could buy my very ordinary, battered, well-thumbed copy of a Penguin edition of George Orwell’s 1984 (worth a couple of pounds at best) for £1 million. The law won’t question that. It might question your mental competence, and inquire as to any fraud. But it will not question what was exchanged. If you are happy to give me £1 million for a next door to worthless paperback, ces’t la vie!
To give you another example, English law will take the same view if I buy your central London apartment for £1. You’re happy to accept £1 and I’m very happy to accept your apartment. The law is quite content.
Those examples above are examples of bargain theory. So long as there is a bargain, an exchange, and there is no dodgy dealing, English contract law will not involve itself.
Another aspect of bargain theory is that English law will not enforce gratuitous promises. A gratuitous promise is a promise in return for nothing else. If I promise to give you £1000 next week and fail to pay up, English law is not interested. There is no bargain. Does that seem fair?
Bargain theory would explain things by pointing out that you haven’t actually lost anything and you weren’t expected to do anything. I mean, it would take more effort to win the lottery. So, it seems quite fair.
And, if you wanted to make the promise binding you could always get a deed drawn up.
Oh, and another thing. From a practical point of view, if every broken promise was enforceable our already creaking court system would grind to a halt.
So it seems fair, don’t you think?
But what about this. I promise to pay you £1000 next week. Excited about this prospect you buy £1000 worth of shares in ABC PLC. Two days later the company is wound up. You’ve just lost £1000 and to make things worse, I don’t pay you the £1000 I promised.
Again, English law with its bargain theory foundation says: hard luck. You took a chance. Buying shares is risky. My promise was just that. A promise. Is this still fair?
It probably is fair. But on a moral level there is a difference, I should suggest, between doing nothing and buying the shares. The difference is that in buying the shares you have altered your position. You have acted in reliance upon my promise.
Bargain theory is very much an individualistic theory. Its period of major development was one when individualism and self-reliance were very influential in The UK. Individualism is very much about self-reliance. We are justified in relying on other only if we pay for that privilege.
And that holds morally as well as legally. But…
…if I trust you and alter my position to my detriment because of what you have told me surely my trust and my detriment is a payment (of sorts) that justifies my relying on you. And that in very simplistic terms is a reliance based obligation.
Reliance is trust in action. If I rely on you I alter my position (act) because I have trusted and acted what you have said or what you have done.
I was always, and remain, very much a bargain theory supporter. Individualism and self-reliance appear to me to be overwhelmingly important principles. We have to be responsible for our own lives. If we make foolish decisions, we can’t just go blaming someone else.
Having said that, I’m also uncomfortable with the idea that one person can deliberately (or recklessly or negligently) encourage reliance in full knowledge that another may act detrimentally and take no responsibility for that encouragement.
But as uncomfortable as this leaves me, I used to find it difficult to square that discomfort with my belief in self-reliance.
As far as English contract law is concerned, it is never going to concern itself with cases of detrimental reliance without something more. And there are now a number of areas of law (contract and related areas) that have developed protections for types of detrimental reliance.
But those protections have not developed, for the type of situations I have given. For the simple practical reason I mentioned above, it would be unworkable. But morally, as an ethical principle, as a way of guiding how we act towards others, I suggest that a reliance based ethics has a great deal to offer.
But I still have leaves me with the problem of squaring self-reliance with detrimental reliance. The two appear diametrically opposed.
The solution for me appears in the work of two very different writers: Jean Paul Sartre – and existentialist thought more generally, and Alan Gewirth.
This post deals only with the ethics of Sartre. The ethical theory of Alan Gewirth will be examined in a later post.
Sartre and Existentialism
Jean Paul Sartre was a genius; one of the twentieth century’s most influential philosophers. Sadly he never completed his promised work on ethics. However, much of his existentialist writing is concerned with ethical themes.
Existentialism is very much a practical philosophy. It is accepted as a given that we are part of the world. There are no questions asked about whether we exist or whether there is a world. There is a world and we are thrown naked into it.
Being thrown into the world is a phrase more associated with Martin Heidegger, rather than Sartre. Its meaning, however, is something with which Sartre would agree.
The idea of being thrown into the world is very much the crux of existentialism. We just happen to exist. Our individual lives are contingent. It could have been otherwise. You, I, the friends we know, anyone walking the planet at this moment – or any other moment for that matter – may never have been born.
Our existence is not necessary. Whether or not you believe in god, the following is inescapable. If god exists – the Judaeo-Christian god – then god’s existence is necessary. Existence is part of what it is to be god.
But human beings do not have to exist. Individually, we don’t have to exist. As a species, evolution could have been otherwise.
The idea of being thrown into the world means we simply exist in the world. Our lives have no predetermined purpose. And unlike things – rocks, chairs, plants – we have no predetermined nature. As Sartre put it our existence precedes our essence.
What he meant by this is that we have certain characteristics that we are born with like our height. These characteristics Sartre refers to as our facticity. But what we become is down to our choices. We can do nothing about the situations that we find ourselves in. We can, though, do something about how we react to our circumstances.
Sartre says we are condemned to be free. We have to choose. The only thing we cannot choose is not to choose because that is itself a choice. Our choices form us. Sartre calls this our transcendence. Our choices take us beyond our facticity.
So, if today you are a rare book collector, it is because of the choices you made. You weren’t born a rare book collector. You may have been born into a family of rare book collectors. That is part of your facticity. But it is the the choices you made that have made you into a rare book collector.
So, we have to choose, but how do we choose? What values are there to guide us? For Sartre and many existentialists there are none. We make our own values by our choices.
One of the criticisms of Sartre’s thought is that it is very individualistic and has little regard for other people who may be affected by our choices. This, it has always seemed to me, is very much in tune with the idea of bargain theory and self-reliance.
In Sartre’s thought, we have to rely on ourselves. We can take advice. We can choose to follow that advice. But ultimately it is we who choose. We are responsible for our choices. Even if we pay someone for advice – lawyer or accountant – it is still our choice to follow it.
This seems perfectly consistent with bargain theory. We make our choices. We can take advice, and pay for it. We can follow that advice. But it is we who choose to follow the advice.
Where we rely on a gratuitous promise, under bargain theory and in Sartre’s thought we choose how we react to the promise.
Relying on a promise may cause us to act to our detriment. So is there anything in Sartre that offers any help.
I’ve always thought the criticism of Sartre was a little unfair. Sartre recognised that our engagement in the world is not just an engagement with things. We are beings-in-the-world and beings-for-others.
We have to engage with others. We are affected by how others behave towards us. Others are affected by how we behave towards them. We may rely on others and others may rely on us.
In Sartre’s play No Exit (Huis Clos), he closes the play with the phrase hell is other people. We may be condemned to be free. We may have to make choices and that responsibility may fill us with dread and anguish.
We often make excuses for our choices. That is so much easier than the burden of responsibility that making choices places upon us. Abdicating our responsibilities for our choices is called bad faith by Sartre.
But often our choices are influenced by other people. We know we are judged by others. Others know they are judged by us. We know we are constantly subject to the gaze of others. Others are subject to our gaze.
The gaze of others makes us objects of their scrutiny. Our choices are affected by others, by their scrutiny, by their gaze. We often become aware of the Gaze of others. And when we do we become acutely aware of ourselves. We can begin to behave differently because we are conscious of objects for others.
Did you ever have to give a presentation; an important one. You might have rehearsed. You might feel good on the day. You’re sitting in the presentation room waiting to be called. You count the other people, your audience. They look important.
You’re called to the front. You go to your notes. You look at your notes. They are in the wrong order. You didn’t number the pages. You fumble with your notes. You feel the collective Gaze. You begin to sweat. You have a strange sensation of almost observing yourself from the outside.
How you behave now is affected by how you are influenced by your situation. And this may be no comfort to you, but when you hear a couple of nervous coughs and perhaps a couple of whispers, you can be sure that your Gaze has affected the others in the room.
Whatever you do as a result of mixing up your notes are your choices. The pressure of the situation, the collective Gaze influenced you. But to deny that your choices were your choices, whatever the influence, would again be bad faith.
And the same reasoning applies to the behaviour of those in the room who are subjected to your Gaze.
So, Sartre was acutely aware that the way we behave towards others can affect how others behave. However, I don’t think he ever answered the question of how we decide what our choices might be.
But we are beings-for-others, which means that others are beings-for-us, and we are all subjects of the gaze of others. How then can we morally make choices without taking some account of how our choices may affect others?
So, let’s go back to the promise of £1000. If I make this promise to you, I know, under most circumstances, it will have some affect on you. You might just make you pleased. It might set you thinking of how you will spend it. It might encourage you to spend in advance of getting the money.
From my part I may have every intention of keeping my promise, but then my circumstances change.
Or, I may know that you are the type of person who may well spend in advance and caution you against this.
Or, I may know you are likely to spend in advance and do nothing to dissuade you, or even encourage you.
And there are innumerable other circumstances you might think of. But, the thing is, in this situation we are beings-for-others and our actions will influence each other.
When it comes to how we should act, Sartre would point out that there are no answers. We have to choose.
Let’s now look at the implications of a reliance based ethics for ageing.
The Vulnerabilities of Ageing and Reliance-Based Ethics
As we age, the natural decline in our physical and mental abilities can lead to an increased reliance on others—whether that’s family members, carers, or social structures like healthcare and pensions.
But what does that reliance mean ethically? Reliance-based ethics can offer a way to think about this, especially when it comes to how we treat those who are ageing and how we expect to be treated as we get older.
You see, reliance doesn’t just mean needing help with daily tasks. It’s about trust—trust that someone will do what they say, trust that systems will provide the care or support they promise. When we trust, we are likely to rely. Reliance is trust in action.
When we rely we may act. When we act, we alter our positions. Our altered positions can be to our benefit or our detriment.
And when that trust is broken, especially if you’ve made decisions based on it, the consequences can be severe.
Imagine relying on a pension system that collapses just when you need it most. Suddenly, you’re left vulnerable because you trusted – you relied and acted on – that promise.
A reliance-based ethic suggests that this vulnerability, this trust, creates a moral obligation. Even though there’s no formal contract in many of these situations, the reliance itself is what justifies the obligation.
And when we look at ageing through this lens, it opens up important questions about how we ought to behave toward those who rely on us—and how society should be structured to support that reliance.
Existential Freedom and Ageing
Sartre’s philosophy of existentialism, at first glance, might seem at odds with the idea of reliance. He famously said that we are “condemned to be free,” meaning that we have no choice but to make choices. This can be a daunting concept as we age. After all, if freedom is about making choices, what happens when your options become more limited?
Here’s where Sartre’s distinction between facticity and transcendence becomes helpful. Facticity refers to the aspects of our lives that are beyond our control—things like our birth, our genetic makeup, and, indeed, the process of ageing.
You can’t stop time, and there’s no escaping the physical and cognitive changes that come with it. But, according to Sartre, how you respond to those changes is entirely up to you.
This is where transcendence comes into play. Despite the constraints of ageing, you’re still free to choose how to interpret and navigate your situation.
Perhaps you’ve retired and your health is declining. While you may no longer have the energy to pursue certain activities, Sartre would argue that you are free to reinvent your purpose, to transcend your limitations. You could take up new hobbies, start mentoring others, or get involved in community activities.
These choices, made in response to your facticity, allow you to maintain a sense of freedom and agency.
However, Sartre’s critics often point out that his philosophy can seem overly individualistic. After all, how do you make free choices in a world where you increasingly rely on others?
This tension becomes especially relevant as you age. Sartre’s response would be that, although you might need support, you are still free to choose how you interact with that reliance. You can still assert your autonomy by deciding how you want to live, even if your choices are influenced by others.
Reliance-Based Ethics in Practice: The Role of Carers
Now, let’s consider the role of carers. If you are in a position where you need care, it’s likely that you are relying on someone else to help you with everyday tasks—getting dressed, cooking meals, managing medication.
From a reliance-based ethics perspective, the carer has a moral responsibility to act in your best interest because of the trust you’ve placed in them.
But here’s where things get tricky. The balance between autonomy and care is delicate. On one hand, a carer should respect your independence and avoid making you feel like you’ve lost control over your life.
An important consideration here, which may be a topic for a future blog, is that we are never, at any age, entirely independent. We live in an interdependent world- Sartre’s being-in-the-world.
On the other hand, they also need to make decisions that ensure your safety and well-being. This means that carers must constantly navigate a moral line—honouring your reliance on them without stripping you of your autonomy.
Just on the subject of keeping you safe – again this may form the topic of a future post – in most situations the aim should not to be to wrap you in cotton wool. It’s not good to eliminate risk entirely from our lives. There is dignity in risk; an idea attributed to a disability rights campaigner named Robert Perske.
A key aspect of reliance-based ethics is the idea that a gratuitous promise still holds weight. Imagine a situation where a friend or relative promises to visit an elderly person every day to help with meals.
There’s no formal agreement, but that promise creates an expectation. If the friend suddenly stops visiting without notice, they’ve violated the trust that’s been placed in them.
While English law might not recognise this as a breach of contract, ethically, the friend has failed to uphold his or her end of the relationship.
Ethical Implications for Society at Large
Society as a whole relies on older generations in various ways, whether that’s through their contributions to family life, their roles as mentors, or their financial input in supporting younger relatives.
This reliance creates a moral obligation. Yet, we live in a society that often side-lines the elderly, viewing them more as burdens than as active contributors. This marginalisation can be seen in everything from inadequate pension schemes to the neglect many elderly people face in care settings.
Sartre’s idea of “the gaze” is useful here. He argues that we are constantly shaped by how others see us. As we age, society’s gaze tends to objectify us, reducing us to the roles of ‘retiree’ or ‘care home resident’.
This can have a profound effect on how we see ourselves, potentially limiting our ability to make free, autonomous choices. A reliance based ethic demands that society does better—that we reframe how we see and treat the ageing population, recognising the trust they place in us and the ethical obligations that come with it.
Public policies, too, are a form of reliance. Older adults rely on pensions, healthcare, and social services to uphold their quality of life. When these systems fail, as we’ve seen in cases of underfunded NHS services or mismanaged pension funds, the consequences can be dire.
A reliance-based ethics would argue that society has a duty to protect the elderly from such failures because of the reliance that’s been placed on these systems.
Case Studies: Detrimental Reliance and Ageing
Let’s look at a few practical examples to illustrate how detrimental reliance plays out in the real world.
Healthcare Promises and Detrimental Reliance
Imagine you’re waiting for a critical surgery. You’ve been told it will happen within a certain time-frame, so you make plans based on that information—perhaps arranging for a carer to help you recover or putting your finances in order.
But then, due to administrative delays, the surgery is postponed for months. This leaves you in a precarious position, and your reliance on the healthcare system has led to a detrimental outcome. While there may not be legal consequences for the NHS, from a reliance-based ethics standpoint, you’ve been wronged because your trust was violated.
Family Care and Broken Promises
Another example might be a situation where an elderly person relies on promises made by relatives to provide care. Let’s say a son promises his mother that she can live with him in her old age, but when the time comes, he backs out, citing various challenges.
The mother, having relied on that promise, now faces uncertainty and potential hardship. Here again, there may be no legal recourse, but morally, the son’s broken promise has significant ethical implications.
Elderly Vulnerability and Financial Reliance
Finally, consider the financial reliance many elderly people place on institutions managing their pensions. If those funds are mismanaged, leaving the elderly with insufficient income, reliance based ethics would argue that the institutions have an obligation to compensate, even if the legal framework doesn’t require it.
There are innumerable, recent examples of people trusting institutions to safeguard their future, and when that trust is broken, the ethical duty to make amends is clear.
Ageing, Existential Freedom, and New Opportunities for Transcendence
Despite the vulnerabilities that come with ageing, reliance on others can offer new opportunities for transcendence.
As Sartre would say, even within the constraints of ageing, you are still free to choose how to live. Relying on carers, family, or community support doesn’t mean you lose your freedom. In fact, you can redefine what freedom looks like in this stage of life.
Perhaps you find new purpose in volunteering, mentoring younger people, or pursuing creative hobbies. The key is that reliance on others doesn’t have to diminish your sense of self—it can actually provide a foundation for new forms of transcendence.
You might no longer be as physically capable as you once were, but that doesn’t mean your life is without meaning or purpose.
Conclusion: Bridging Sartrean Ethics and Reliance-Based Ethics for the Ageing
So, where does all this leave us? Sartre’s existentialism might seem to prioritise radical individual freedom, but it also acknowledges that we are beings-for-others.
We are shaped by our relationships and by the trust we place in others. A reliance-based ethics, when combined with Sartre’s philosophy, offers a powerful framework for thinking about ageing. It reminds us that even in our later years, we are still free to make choices, but those choices are influenced by the reliance we place on others—and by the reliance others place on us.
Ultimately, as we age, the ethical challenge is to balance self-reliance with the trust we place in others. For carers, family members, and society at large, the task is to honour that trust and ensure that reliance doesn’t become a source of vulnerability but an opportunity for mutual respect and care.
As always, leave a comment.