Comparative Law in Action: Promissory Estoppel, the Civil Law, and the Mixed Jurisdiction
David V. Snyder
Washington College of Law, American University
Arizona Journal of International and Comparative Law, Vol. 15, October 1998
Promissory estoppel, long a controversial topic in the common law, was introduced into a civil-law framework in Louisiana in 1985. This article examines how the doctrine has functioned when removed from its common-law origins and how civilian theory has reacted to the import from the common law. Promissory estoppel was conceived as a substitute for consideration, yet the civil law does not use the doctrine of consideration. Originally used to solve problems incident to gifts, promissory estoppel in its civil-law incarnation has been legislatively excluded from operating in many donative contexts. Still, by observing how promissory estoppel works within a civil-law setting, we learn about the essential power of the doctrine. It has survived the transition in systems remarkably intact, continuing to do traditional promissory estoppel "jobs," and even continuing to appear in litigation over donative transfers.
In addition, observing the interaction of promissory estoppel and civilian theory offers the rare chance to watch comparative law in action. The common law and civil law, which usually operate in entirely different countries, are forced together in this instance. This article discusses not only the profound theoretical effects that the systems have on each other, but also peculiar aspects of the "mixed jurisdiction." Two competing tendencies are suggested: the inclination to resist the foreign, on the one hand, and the urge to reach for the new, on the other hand. Within the context of promissory estoppel, these dual tendencies result in an apparent slowness to innovate but also a concomitant supercapacity for rapid doctrinal growth. This ambivalence pervades the interaction between systems, and is perhaps inherent in the mixed jurisdiction.
JEL Classification: K12, K20
Date posted: April 20, 1999