(dissenting, with whom Liacos and Abrams, JJ., join). For various reasons discussed below, I respectfully dissent. I write on the assumption that Sullivan v. O’Connor, 363 Mass. 579 (1973), remains the law and that, in consequence, there is no obstacle to the plaintiffs seeking damages for the defendant’s alleged breach of a contract to produce a medical result. I believe that errors in the exclusion of evidence so prejudiced the plaintiff that she is entitled to a new trial. Moreover, I cannot agree with the holding of the court that the evidence, either with or without those statements which I believe were erroneously excluded, was insufficient to prove the existence of an express contract to produce a specific medical result. I would therefore reverse the judgment entered below and remand the case for a new trial.
1. Errors in excluding evidence. The plaintiff sought to introduce in evidence three statements made by the defendant in the summer of 1974. These statements, and the circumstances in which they were made, are set forth in the court’s opinion, supra at notes 5-6. In substance, all the statements asserted that it was impossible for the plaintiff to be pregnant. The judge initially allowed the plaintiff to testify as to one of these statements made to her. He later reversed himself, however, and he ordered the testimony struck and instructed the jury to disregard it. Although the precise reason for striking the testimony is unclear, the judge apparently relied on a supposed rule of law to the effect that “[a]ny statement after the contract has been performed, in this case after the operation took place, concern*161ing that contract, what might have been a promise, is inadmissible to establish that the contract was made under certain terms and conditions.” The judge later excluded evidence of other similar statements to the plaintiffs mother on the ground of the hearsay rule, holding, in effect, that the plaintiff had the burden of demonstrating the admissibility of the statements under some exception to that rule.
It is clear that no unilateral statement or conduct by a party to a contract occurring after the performance of the contract can change the obligations of the parties thereunder. 1 But statements made at any time after the making of the contract may shed light on the meaning ascribed by the parties to the language they used. See, e.g., Gishen v. Dura Corp., 362 Mass. 177, 182 (1972); Jennings v. Whitehead & Atherton Mach. Co., 138 Mass. 594, 596 (1885). “This evidence is not received for the purpose of constructing a new contract or varying the old one, . . . but is to enable the judge to understand the subject matter of the agreement as it lay in the minds of the parties and the meaning that they themselves put upon any doubtful or ambiguous terms they may have used, and so to apply their language correctly to the subject matter which was in their contemplation.” Rizzo v. Cunningham, 303 Mass. 16, 21 (1939).
In this case, the various statements made by the defendant, when considered with the other evidence in the case, might lead a jury to infer not only that the defendant believed the plaintiff to be incapable of becoming pregnant in the summer of 1974, but also that he had previously prom*162ised to make her so. Thus, testimony concerning the postoperative statements was relevant to aid the jury in determining what the parties meant by their pre-operative conversation, and it was therefore presumptively admissible.
Reliance on the hearsay rule as a ground for excluding the evidence is unpersuasive. In classical terms, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. W.B. Leach & P.J. Liacos, Massachusetts Evidence 183 (4th ed. 1967). McCormick, Evidence § 246, at 584 (2d ed. 1972). Fed. R. Evid. 801(c). In this case, the jury was not asked to believe that the plaintiff could never become pregnant after the surgery by the defendant. Indeed, the contrary was the foundation of the lawsuit — the plaintiff did again become pregnant notwithstanding the surgery. Rather, the jury was asked by the plaintiff to believe that the defendant had promised and intended that the plaintiff would be rendered incapable of becoming pregnant. Offered for such a purpose, the defendant’s statements were simply not hearsay. See Productora e Im-portadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826, 842 (1978); Commonwealth v. Leaster, 362 Mass. 407, 412 (1972).
Even if the proffered statements were technically hearsay, they were so obviously admissions by the defendant as to be admissible as a matter of course. There was no necessity for the plaintiff to pursue the empty formalism of citing the “admission exception” to the hearsay rule (if, indeed, the statements could be admitted only under such an “exception” to the rule).2 Accordingly, I would hold that testimony concerning the statements was improperly excluded.
*163I believe further that the error in excluding the statements caused substantial prejudice to the plaintiff. In response to special interrogatories, the jury answered inconsistently that (1) the defendant promised the plaintiff she would not have children, but that (2) the defendant did not breach the contract of which such promise was a part. In my view, this inconsistency stemmed in part from the erroneous evidentiary rulings and reflected confusion over the import of the evidence.3 The plaintiff was entitled to place before the jury evidence susceptible of being interpreted as an admission by the defendant that, if he had performed what he had promised to do, the plaintiff could not be pregnant in the summer of 1974. Having been prevented from doing so, the plaintiff is now entitled to a new trial.
2. Sufficiency of the evidence. I also disagree with the conclusion of the court that there was insufficient evidence of an express contract for the case to go to the jury. In arriving at its conclusion that the evidence was insufficient, the court cites our decision in Sullivan v. O’Connor, 363 Mass. 579 (1973), for the proposition that there must be “clear proof” that the defendant contracted to achieve a particular medical result.4 The court then notes that “[i]t should be regarded as a negative factor, although one not itself determinative, that the physician and patient did not focus on the question whether the physician was undertaking to achieve a given result.”
*164I believe that in this case there was in fact evidence of a promissory “focus” on an agreed result, and that, the jury could have found a reasonable expectation by the plaintiff of a particular result.
It could be found from the plaintiff s testimony that the sole result which she desired to obtain from the tubal ligation was that she would become incapable of having children thereafter. The court apparently views the defendant’s statements as “reasonably calculated only to reassure a patient or, as in this case, for stating the significant consequences that could be expected to follow upon a successful surgical procedure.” It relies on this view of the evidence to decide that, in the context of this particular professional relationship, the physician was not promising a specific result. Plainly, however, the defendant’s secret intentions have nothing to do with the objective meaning of his words. The jury could reasonably have inferred, based on the plaintiff’s testimony alone and without reference to the defendant’s statements that were excluded, that the plaintiff desired not to have to endure further pregnancies. Furthermore, the defendant had reason to know that such was the plaintiff’s intention and should bear any risk that his own language would be misunderstood. See, e.g., Restatement (Second) of Contracts § 227 (2) (b) (Tent. Drafts Nos. 1-7, 1973). It was, therefore, open to the jury to find, as they did, that a contract to produce a particular medical result arose and that the plaintiff reasonably understood the defendant to warrant her future sterility. The fact that we, as judges, might not draw the same inference is beside the point. Similarly, it is unimportant that the parties omitted to use words like “warranty,” “guaranty,” or the like and that the plaintiff, rather than the defendant, proposed the procedure.5 It is enough that the evidence, reasonably *165viewed, permitted the inferences necessary for the jury to conclude that the parties made an express contract looking toward achievement of a particular medical result.
The law generally permits the formation of a binding contractual obligation whether or not the parties are specifically aware of the legal consequences of their acts. Restatement (Second) of Contracts § 21B (Tent. Drafts Nos. 1-7, 1973). If the court harbors hostility for the holding of Sullivan, I believe it would be better to deal directly with the continued wisdom of allowing contractual remedies for medical procedures which fail to produce a promised result rather than to impose artificial obstacles to pursuing the disfavored remedy. Cf. Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 520-521 (1979).
3. The plaintiff seasonably raised and argued some questions of law relating to the measure of her damages. Because the court has decided to affirm the judgment for the defendant and has not discussed these questions, it would be inappropriate for me to do so.
4. I would hold (a) that there was sufficient evidence to go to the jury on the contract issue and (b) that the judge erred in excluding evidence of the defendant’s admissions. I would therefore reverse the judgment and remand the case to the Superior Court for a new trial.
It is unnecessary to decide whether, in the circumstances of this case, the defendant’s statements could be construed as representations in the nature of a new or renewed warranty so as to give rise to an action for deceit if relied upon by the plaintiff to her detriment. Cf., e.g., Lowell Gas Co. v. Attorney Gen., 377 Mass. 37, 53-54 (1979), and cases cited (concerning representations of facts capable of exact knowledge); Restatement (Second) of Contracts § 90 (Tent. Drafts Nos. 1-7, 1973) (effect of promise inducing reliance). We are concerned only with the sufficiency of the proof on the theory adopted by the plaintiff.
It is both unnecessary and unprofitable to indulge in a hair-splitting analysis of the question whether an admission is hearsay within an exception or is not hearsay at all. See, e.g., McCormick, Evidence § 262, at 628-629 (2d ed. 1972); E. Morgan, Basic Problems of State and Federal Evidence 241 (Weinstein 5th ed. 1976); 4 J. Wigmore, Evidence § 1048, at 2-8 (Chadbourn rev. ed. 1972); Fed. R. Evid. 801(d). “This theoretical difference is of no practical importance.” W.B. Leach & P.J. Liacos, Massachusetts Evidence 194 (4th ed. 1967). What is important is that admissions are competent evidence regardless of the theory which justified their use.
It was within the judge’s discretion whether to grant relief from the inconsistent answers when the claim for such relief was made for the first time in the motion for a new trial. See Hathaway v. Checker Taxi Co., 321 Mass. 406, 412 (1947), and cases cited. It does not follow, however, that because the motion for a new trial raising that question is denied, the plaintiff is precluded from seeking appellate review of evidentiary rulings, the effect of which is manifested in those same inconsistent answers.
The court recognizes that “clear proof” does not “heighten the burden of proof.” See Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 873-877 (1975) (Quirico, J., dissenting). I question, however, the practical utility of using the words “clear proof” while stating at the same time that they do not “heighten the burden of proof.” It is unnnecessary to pursue the point further, for I read the court’s opinion as resting on the lack of evidence of agreement rather than on the quantum of evidence.
If a physician solicits a patient to undergo an elective, and ultimately unsuccessful, procedure, he may well be suspected of promising something more than a physician who merely agrees to do what his patient requests. Here, however, the plaintiff presumably forbore the use of *165other methods of birth control once the tubal ligation was completed, relying on the defendant’s representations that she could no longer have children. As it was surely within the power of the defendant to explain that the procedure might not be completely successful, it should make no difference that the plaintiff approached the defendant rather than vice versa.