The Justice Element of Promissory Estoppel

Authors

Orit Gan

Document Type

Article

Abstract

(Excerpt)

The contribution of this Article is threefold. First, it critiques the current case law for ignoring and neglecting the justice element of promissory estoppel. This goes against the specific wording of section 90 of the Restatement (Second) of Contracts and also against promissory estoppel’s rationale and purpose. Contrary to this approach, this Article suggests a robust justice element based on a theory of distributive justice.

Second, a more robust justice element will make the doctrine of promissory estoppel more meaningful. This will result in better protecting reliance, furthering trust and cooperation among parties, empowering disadvantaged parties, and making the formation of contract a more flexible and conscience process. Furthermore, this author’s previous Article, Promissory Estoppel: A Call for a More Inclusive Contract Law, advocated the importance of promissory estoppel and stressed that this doctrine serves to police power imbalances between parties. More generally, it enables underprivileged promisees to enforce promises and to benefit from contracts. Accordingly, it makes contract law more inclusive by enforcing rather than excluding these promises. This Article is a follow-up article dealing with how this can work in practice, meaning how promissory estoppel should become a more meaningful doctrine. This Article suggests that a robust justice element will make promissory estoppel a more significant doctrine of contract formation.

Third, this Article suggests a novel rationale for applying distributive justice in contract law. While many scholars negate the arguments against such application, this Article offers a different approach to supporting distributive justice consideration under a contract law doctrine. In her previous article, this author shows how promissory estoppel has a disparate impact on different social groups. That article argues that promissory estoppel is mainly used by underprivileged promisees, such as employees. Since these promisees cannot satisfy the consideration requirement, they cannot claim breach of contract; as such, promissory estoppel is their only way to enforce the promises made to them. Building on this groups-based analysis, this Article argues that promissory estoppel should apply distributive justice considerations. Because promissory estoppel is applied differently by different social groups, this doctrine should address these allocative consequences.