Toxic Promises

60 Pages Posted: 20 Jan 2021 Last revised: 4 Apr 2022

See all articles by Samuel Becher

Samuel Becher

Victoria University of Wellington

Yuval Feldman

Bar-Ilan University - Faculty of Law

Meirav Furth

UCLA School of Law; Tel-Aviv University School of Law

Date Written: December 22, 2020


Sellers often make manipulative and dishonest claims about their products and services. Such assertions, often made in oral interaction between buyers and sellers, substantially influence consumers’ choices. This Article argues that the law currently underestimates, and does not properly respond to, the social harm that manipulative promises generate. Insights from behavioral ethics suggest that even ordinary, law-abiding sellers frequently have limited self-awareness of making such manipulative assertions. At the same time, contracting realities lead consumers to rely heavily on these oral assertions. When consumers discover they have been manipulated, it is often too late: pre-contractual oral representations are either dismissed by courts as puffery, qualified by sellers in the unread fine print, or extremely challenging to prove.
Against this background, we call for tighter scrutiny of sellers’ oral promises. We propose a spectrum of ex ante measures that regulators can utilize to monitor firms’ sales personnel training. We also suggest various means to make firms liable for oral misrepresentations made by their employees. Next, we recommend that courts apply a host of doctrines to mitigate toxic oral promises and restrict the enforceability of merger and integration clauses. We further suggest making use of educational campaigns. In making these recommendations, we illustrate how a clever mix of ex ante prevention tools and ex post liability measures can yield a more efficient and fairer market environment.

Keywords: Oral Promises, Precontractual Exchanges, Contracts, Consumer Law, Fraud, Behavioral Ethics, Law & Psychology

Suggested Citation

Becher, Shmuel I. and Feldman, Yuval and Furth, Meirav, Toxic Promises (December 22, 2020). 63 Boston College Law Review 753 (2022) , Available at SSRN: or

Shmuel I. Becher (Contact Author)

Victoria University of Wellington ( email )

P.O. Box 600
Wellington, 6140
New Zealand


Yuval Feldman

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900

Meirav Furth

UCLA School of Law ( email )

Tel-Aviv University School of Law ( email )

0524819151 (Phone)

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