The Double Soul of Promissory Estoppel - A Comparative View
University of Bari - Faculty of Law
November 3, 2010
Comparative Law Review, Forthcoming
The contrast between pre-contractual discipline at common and civil law represents, for the comparative scholar, a conceptual challenge that deserves to be harvested. Trying to formulate common principles capable of overcoming national laws, the European side seems to lean towards a cautious recognition of the binding nature of unilateral promise. Both the Draft Common Frame of Reference and the Principles of European Contract Law accept unilateral promises or undertakings as effective if they are "intended to be legally binding without acceptance". This feature may derive not only from the agreement between the parties but also from the mere willingness to assume a legal obligation, in the absence of any paradigm of reciprocal commitment. At first glance, an approach of this kind would seem to mark a break in continuity in civil law systems, which are focused on bilateral nature of the project of autonomy, as compared to common law systems based on the requisite of consideration. However, when looking deeper into the legal fabric developed in common law systems, one can find an instrument (promissory estoppel) which, in the course of its evolution, has progressively shown a predisposition to assume the role as an equivalent or even as a substitute to consideration.
On this basis, promissory estoppel is not only the legal principle charged with the task of smoothing out the rigidity of the doctrine of consideration, but it also creates some kind of functional connection to the European culpa in contrahendo. Accordingly, the comparative analysis will be articulated at both the bargaining level and pre-contractual levels discounting that the elements of the two contexts may be largely overlapping in some cases, but not at all in others. The counterintuitive possibility of identifying the unilateral promise as a bargaining configuration (which revolves around the idea that the promisor wants to stress the seriousness of the commitment) or as an essential requirement of pre-contractual obligation (which it is closely linked to the desire to protect the expectation created in the promisee) requires some crucial theoretical articulations to be reconsidered.
Number of Pages in PDF File: 32
Keywords: promissory estoppel, consideration, contract, culpa in contrahendo, unilateral promise, pre-contractual obligation
JEL Classification: K12
Date posted: November 5, 2010