Rethinking Promissory Estoppel

Abstract

Samuel Williston, the official Reporter for the ALI’s first Restatement of the Law of Contracts in 1932, claimed that promises had been enforced without consideration in sufficiently many cases across different factual situations that the only way to embrace them all was to create a provision, set forth in Section 90 and generally referred to as “promissory estoppel,” that purports to suspend wholesale the normal rules governing contract formation. This Article challenges that assertion as a factual matter, and challenges the claim that only a provision as broad as Section 90 could accommodate certain limited exceptions to the consideration requirement that had been observed at the time.

To the extent Williston’s initial claim of authority rests upon questionable assertions, fundamental concerns arise as to the legitimacy of Section 90 in its current form and as to the doctrinal validity of cases decided on the basis thereof.

This Article further addresses the implications of this analysis for the future of contract law. In order to reduce the risk of contract bleeding out doctrinally into tort, the Article argues that a markedly more modest approach than that reflected in Section 90 should be taken with respect to the enforcement of promises in the absence of consideration. Specifically, the Article argues in favor of discrete, limited categorical exceptions to the consideration requirement. As to factual situations not falling within those categorical exceptions, courts should strongly consider an implied unilateral contract analysis as an analytic paradigm preferable to that of promissory estoppel.

Keywords: promissory estoppel, Section 90, Williston, Corbin, Gilmore, Restatement of the Law of Contracts, Restatement (Second) of Contracts