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create disputes and litigation, clearly still an undesirable or ‘unhappy’ result.
In his own analysis on the process of promising, Searle offers a different,
more specific set of necessary conditions.
Though more specific and detailed, Searle’s analysis is highly consistent
with Austin’s broader framework (presented earlier). At first glance, two
minor deficiencies may seem to appear in Searle’s necessary conditions, but
they are easily resolved. First, unlike Austin, Searle does not explicitly require
the existence of a conventional or well-accepted procedure for promising.
However, as previously mentioned, Searle implicitly assumes that the proce-
dure exists, and given the familiar nature of promising, the standard procedure
for promising (i.e., the utterance of certain words, such as ‘I promise that’)
seems obvious enough. Second, since Searle’s analysis specifically pinpoints
intent and sincerity rather than broadly encompassing all proper mindsets, it
does not seem to preclude other infelicities such as duress. However, a closer
examination shows that the broadly constructed condition 1, normal input and
output conditions, quickly disposes of this problem. The notion of normal
implies a preexisting practice or pattern of behaviour, which is present in
traditional commerce but still awaited in e-commerce.
Institutional facts and constitutive rules
The concept of a performative sentence provides a useful analytical
perspective by showing how certain words, if uttered under appropriate
circumstances, can create contractual obligations. However, the discussion
still does not fully answer the original question of how utterances or actions
lead to contractual obligations. After all, who sets Austin’s conventional
procedure? And how does a society come to recognize an individual’s actions
as constituting a promise or contract? To resolve these questions, one needs
to build on performative acts and examine Searle’s concepts of institutional
facts and constitutive rules.