ABSTRACT
In cases where charitable promises are made and later retracted, the Restatement (Second) of Contracts provides conflicting guidance as to how a court should factor in reliance by the charity when considering whether to enforce the promised donation by way of promissory estoppel. Specifically, the text of § 90(2) within the Second Restatement provides that a charitable subscription is binding ‘without proof that the promise induced action or forbearance’. The adoption of this provision represented a departure from the requirement of reliance historically necessary for the enforcement of most types of promises by promissory estoppel. According to the Second Restatement, however, reliance remains relevant to the determination of whether enforcement of a promise is necessary to avoid injustice, which is a required element to enforce a charitable subscription pursuant to § 90(2). Namely, Comment b to § 90, discussing the character of reliance protected, notes that enforcement of the promise must be necessary to prevent injustice, one factor of which is the nature and extent of reliance; such reliance ‘need not be of substantial character in charitable subscription cases’. Comment f states that for charitable subscriptions where recovery is rested on reliance, ‘a probability of reliance is enough’, although American courts ‘have found consideration in many cases where the element of the exchange was doubtful or nonexistent’. Moreover, Illustration 17 to Comment f describes a situation where reliance does in fact support enforcement of a charitable subscription …
Abely, Christine, The Uncertain Role of Reliance in the Enforcement of Charitable Subscriptions (May 19, 2022). 26 Lewis and Clark Law Review 113 (2022), New England Law | Boston Research Paper No 22-04.
First posted 2022-06-02 15:15:00
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