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.
Since 1932, innumerable cases have been decided on the basis of promissory estoppel precisely because the ALI’s restatements have held themselves out as definitive declarations of the law. Williston’s initial claim of authority for Section 90 is the lynchpin upon which both the legitimacy of Section 90 as well as the doctrinal validity of those subsequent cases ultimately depends.
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 implied unilateral contract as an analytic paradigm preferable to that of promissory estoppel.
Recommended Citation
Eric Alden,
Rethinking Promissory Estoppel,
16
Nev. L.J.
659
(2016).
Available at:
https://scholars.law.unlv.edu/nlj/vol16/iss2/7