Private Law Theory

Abstract:
The common law theory of promissory estoppel offers a possible avenue for closing the gap between the civil law concept of cause and the common law doctrine of consideration. The civil law concept of cause supports the enforcement of gratuitous promises, or promises for which there is no consideration. The common law doctrine of consideration, by definition, does not support the enforcement of such promises. Students of United States contract law, however, may be surprised to learn that – in contrast to promissory estoppel as an affirmative cause of action in the United States – English common law recognizes promissory estoppel only as a defensive shield, except in the limited context of promises relating to ownership of land.

Further inquiry into the enforcement of promises under common law reveals a second surprise to students in the United States, where the legal effect of sealed instruments has largely been abandoned. English common law has never abandoned its modern equivalent of the early action of covenant, which provides for enforcement of a promise, even if gratuitous, if stated in an authenticated writing. Thus, a gratuitous promise under deed (a promise in a signed, witnessed, and delivered writing) is fully enforceable in England, arguably bringing English common law closer to the enforcement rules of the French Civil Code than to the common law of the United States.

By including such comparisons in our contracts courses, students can appreciate the non-inevitability of the paths taken in the common law. At the same time, students can appreciate the degree to which the common law and civil law both recognize the need to enforce promises outside the context of an exchange, although they have taken slightly different roads to reach that destination.

Calleros, Charles R, Cause, Consideration, Promissory Estoppel, and Promises Under Deed: What Our Students Should Know About Enforcement of Promises in Historical and International Context (2013). XIII Chicago-Kent Journal of International and Comparative Law 84 (2013).

First posted 2016-03-09 14:35:05