Post § 90: Promissory Estoppel in the Courts That Use It Most

55 Texas Tech L. Rev. 599 (2023).

67 Pages Posted: 27 May 2022 Last revised: 4 Nov 2023

See all articles by Val Ricks

Val Ricks

South Texas College of Law Houston

Date Written: May 23, 2022

Abstract

Promissory estoppel is a well-established ground for relief. But courts are abandoning Restatement (Second) of Contracts § 90, the doctrine’s original formulation. Most significantly, they have abandoned its last element—“injustice can be avoided only by enforcement of the promise.” In its place, courts require detriment or injury resulting from reliance. And though § 90’s other elements remain, courts add to them requirements that the promise be of a certain quality and that the promisee rely reasonably. This emerging synthesis is the most accurate statement of promissory estoppel in at least eleven states governing over half the population of the United States. Litigation needs appear to drive the change. Local politics do not seem to matter to the new formulation; the law on the ground in Texas, New York, California, Florida, Illinois, Ohio, New Jersey, Massachusetts, and Tennessee is much the same, and it is not § 90. The “new” law is not burdened with § 90’s glorious purpose, but it is predictable, practical, and just. It is also the trend in jurisdictions where the most cases have occurred. Over 100 years have passed since Williston proposed promissory estoppel. It is time the law became predictable and practical. Perhaps it is time to restate § 90.

Keywords: promissory estoppel, contract, estoppel, reliance

JEL Classification: K12, K20

Suggested Citation

Ricks, Val D, Post § 90: Promissory Estoppel in the Courts That Use It Most (May 23, 2022). 55 Texas Tech L. Rev. 599 (2023)., Available at SSRN: https://ssrn.com/abstract=4117874 or http://dx.doi.org/10.2139/ssrn.4117874

Val D Ricks (Contact Author)

South Texas College of Law Houston ( email )

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