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To help understand how words can create obligations (doing things with
words), Austin offers the concept of a ‘performative utterance.’
As Austin
suggests, a performative utterance, or more simply a ‘performative,’
“indi-
cates that the issuing of the utterance is the performing of an action -
it is not
normally thought of as just saying something.”
15
Performatives ‘do things’
rather than merely state the facts, and can be expressed in the first person
singular present indicative active, such as ‘I give’
(in the context of a will), ‘I
name,’
‘I bet,’
and more important to this discussion, ‘I promise,’
and ‘I agree
to.’
16
Performatives can be accomplished using other sentence structures or
even non-linguistic actions (gestures, signs, etc.), but will almost always
reduce to the explicit form above (first person singular present indicative
active). For example, by signing one’s name on a contract or shaking hands
on a deal, a party may not necessarily explicitly say ‘I promise,’
but implicitly
he/she does so nonetheless.
In the execution of a performative, a person attempts to create a new
element of social reality, such as an obligation or an expectation
that
previously did not exist. Naturally, this process is the essence of contract.
However, whether the performative act is successful and recognized by others
depends on whether the circumstances and context are appropriate. Austin
proffers three necessary conditions for a performative to be effective.
a) A conventional procedure must exist for achieving the effect desired, and the
circumstances must be appropriate for using the procedure.
b) The parties must execute the procedure fully and correctly.
c) If the procedure requires certain attitudes or mindsets (e.g. sincerity), the
participants must have them, and act in accordance with them in the
future.
17
Violating the conditions results in ‘infelicities,’
situations in which the
performative either fails to achieve its purpose or is defective in some manner.
Infelicities apply to all performatives, verbal and non-verbal; it “is an ill to
which all acts are heir which have the general character of ritual or ceremo-
nial…”
18
For example, in the case of contracts, the law sets a conventional
procedure for contract creation, which requires inter alia, offer and accep-