Orit Gan, ‘Promissory Estoppel: A Call for a More Inclusive Contract Law’

It is conventional wisdom that promissory estoppel is a mechanism for screening enforceable promises; and that it is a secondary and an insignificant doctrine, while consideration is the primary doctrine of contract formation. This Article challenges these two premises. First, focusing on the parties behind the promises, the Article argues that the doctrine of promissory estoppel is not only about rendering promises enforceable. In a broader sense, the doctrine also empowers promisees by providing them a meaningful right to contract and an access to contract. Second, the Article claims that because promissory estoppel serves such an important role it should be a meaningful doctrine. By enforcing non-bargained-for promises, this doctrine enables promisees who cannot meet the formalities of consideration to contract. This analysis of promissory estoppel challenges the prevailing neutral discourse. Furthermore, using the constitutional debate regarding same-sex marriage as a model for a successful challenge to marriage’s exclusivness, it suggests instead a rights oriented analysis of promissory estoppel. Inspired by same-sex marriage advocacy this Article concludes with a call for a pluralist and inclusive contract law.

Gan, Orit, Promissory Estoppel: A Call for a More Inclusive Contract Law (February 7, 2012). Journal of Gender, Race and Justice, Vol. 16, 2012.

First posted 2012-03-12 07:50:01

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