Orit Gan, ‘The Justice Element of Promissory Estoppel’

The doctrine of promissory estoppel is based on the promisor’s promise, the promissee’s reliance on the promise and on avoiding injustice by enforcement of the promise. However, court opinions and scholarly literature alike pay little attention to the justice element of promissory estoppel. Judges and scholars focus on the promise and reliance elements, and either ignore the justice element or conclude that the former two elements satisfy the final element as well. This Article, however, argues that the justice element should be an independent and important element of the doctrine of promissory estoppel. Furthermore, this Article calls for using promissory estoppel to promote justice rather than merely avoiding injustice and develops a robust notion of justice based on a theory of distributive justice. Accordingly, courts should incorporate considerations of justice not only to balance between the promisor and the promissee but also to account for relations and power imbalances between social groups. This will not only change the application of promissory estoppel, it will also lead to making promissory estoppel a meaningful doctrine of contract formation.

Gan, Orit, The Justice Element of Promissory Estoppel (March 5, 2014). St. John’s Law Review, Vol 89, No 1, 2015.

First posted 2014-04-07 06:19:33

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