George Mason School of Law

1. George Mason School of Law Contracts I J. Promissory Estoppel F.H. Buckley fbuckley@gmu.edu

2. Restatement § 90(1) • A promise which: • the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person • and which does induce such action or forbearance • is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

3. What we’ll look at • An ideological battle? • Varieties of Promissory Estoppel • The Material Benefits Rule

4. Estoppel: An Ideological Battle? Samuel Williston Arthur Corbin Oliver Wendell Holmes

5. Estoppel: An Ideological Battle? Grant Gilmore, The Death of Contract (1974)

6. Varieties of Promissory Estoppel • Chartable Subscriptions • Family Promises • Employment Contracts • Promises to Insure

7. Charitable Subscriptions • I promise you $10,000 but renege. • Is my promise enforceable?

8. Charitable Subscriptions • I promise you $10,000 but renege. Is my promise enforceable? • On the basis of the promise, you’ve bought a car? Enforceable?

9. Restatement § 90(1) • A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

10. Charitable Subscriptions • You and I meet and agree that we will both donate $5,000 to a third party. • I give. You don’t. Are you liable?

11. What would action or forbearance look like? • I pledge $500,000 to a college which promises to name a scholarship after me.

12. Charitable Subscriptions • Cardozo in Allegheny College p.157 • Where was the promise? Allegheny College

13. Charitable Subscriptions • Does it matter that the college was a 501(c)3?

14. Charitable Subscriptions • What about Restatement § 90(2) • A charitable subscription or a marriage settlement is binding under 90(1) without proof that the promise induced action or forbearance

15. Charitable Subscriptions • What about Restatement § 90(2) • A charitable subscription or a marriage settlement is binding under 90(1) without proof that the promise induced action or forbearance • Suppose the gift is for general purposes? Just how would one show reliance?

16. Charitable Subscriptions • Is Restatement § 90(2) inconsistent with DeLeo at 156?

17. DeLeo • The DeLeo Memorial broom closet • What did you expect for $25K?

18. Charitable Subscriptions • Is Restatement § 90(2) inconsistent with DeLeo at 156? • How might the absence of a writing be relevant • Why “no injustice”?

19. Charitable Subscriptions • Is Restatement § 90(2) inconsistent with DeLeo at 156? • Why “no injustice”? • Fiduciary relationships • Priest: penitent • Lawyer: client • Trustee: beneficiary

20. Distinguish four kinds of duties • Legal duties you should perform even if you don’t promise (e.g., pay taxes)

21. Distinguish four kinds of duties • Legal duties you should perform even if you don’t promise (e.g., pay taxes) • Things you should do because you promised to do so, and provided consideration (obligations)

22. Distinguish four kinds of duties • Legal duties you should perform even if you don’t promise (e.g., pay taxes) • Things you should do because you promised to do so, and provided consideration • Things you should do because you promised, and the promisee has relied, and 90(1) is triggered

23. Distinguish four kinds of duties • Legal duties you should perform even if you don’t promise (e.g., pay taxes) • Things you should do because you promised to do so, and provided consideration • Things you should do because you promised, and the promisee has relied, and 90(1) is triggered • Things you should do because you ought to do them and have promised to do so, notwithstanding the absence of consideration or promisee reliance

24. The fourth kind: Restatement § 90(2) • A charitable subscription or a marriage settlement is binding under 90(1) without proof that the promise induced action or forbearance

25. Charitable Subscriptions • Why do you think most courts refuse to adopt Restatement § 90(2)?

26. Charitable Subscriptions • Which rule produces more charitable giving?

27. Charitable Subscriptions • Why so few such cases?

28. Family Promises • Do they deserve special consideration? • If so, which way does this cut?

29. Haase v. Cardoza p.164 • Was the promise supported by consideration?

30. Haase v. Cardoza p.164 • Was the promise supported by consideration? • Did Alice really stiff Rose and Loretta?

31. Haase v. Cardoza • Was the promise supported by consideration? • What about reliance? A change of position?

32. Haase v. Cardoza • Was the promise supported by consideration? • What about reliance? A change of position? • What about the equities?

33. Ricketts v. Scothorn p.166

34. Ricketts v. Scothorn • Was consideration given by Katie for the promise?

35. Ricketts v. Scothorn • Was consideration given by Katie for the promise? • No promise on the part of the plaintiff to do or refrain from doing anything

36. Ricketts v. Scothorn • Why did the grandfather renege (even before he died)?

37. Ricketts v. Scothorn • Why did the grandfather renege (even before he died)? • “If he could sell his farm…” • Let Katie work for Funke and Ogden as a bookkeeper

38. Ricketts v. Scothorn • Was there reliance by Scothorn?

39. Ricketts v. Scothorn • Was there reliance by Scothorn? • “Having intentionally influenced the plaintiff to alter her position for the worse … it would be grossly inequitable to permit … the executor … to resist payment”

40. Family promises • Why might a promisor want to incur legal liability?

41. Family promises • Why might a promisor want to incur legal liability? • And why might he not want to do so?

42. Family promises • If we enforce them all, do we make promisees better off?

43. George Mason School of Law Contracts I J. Promissory Estoppel F.H. Buckley fbuckley@gmu.edu

44. Varieties of Promissory Estoppel • Chartable Subscriptions • Family Promises • Employment Contracts • Promises to Insure

45. The Employment Context • Feinberg v. Pfeiffer p.173 • What was the promise and why was it made?

46. The Employment Context • Feinberg v. Pfeiffer p.173 • What was the promise and why was it made? • Was there consideration?

47. The Employment Context • Feinberg v. Pfeiffer p.173 • What was the promise and why was it made? • Was there consideration? • Cf. Restatement § 86 on past consideration

48. Past Consideration Doctrine • Restatement 86(1)(1) A promise made in recognition of a benefit previously received by the promisor from the promisee is binding to the extent necessary to prevent injustice. • (2) A promise is not binding under Subsection (1): (a)if the promisee conferred the benefit as a gift or for other reasons the promisor has not been unjustly enriched; or (b) to the extent that its value is disproportionate to the benefit.

49. The Employment Context • Feinberg v. Pfeiffer • What was the promise and why was it made? • What was the reliance? • What would count as reliance?

50. The Employment Context • Feinberg v. Pfeiffer • What was the promise and why was it made? • What was the reliance? • How old was she in 1947? • And for how much longer did she work for Pfeiffer?