ABSTRACT
Have courts rejected Section 90, the American Law Institute’s formulation of promissory estoppel? Courts have not rejected promissory estoppel itself. But courts are abandoning Section 90. Most significantly, they have abandoned its last element – ‘injustice can be avoided only by enforcement of the promise’. In its place, courts require detriment or injury resulting from reliance. And though Section 90’s other elements remain, courts add to them requirements that the promise be of a certain quality and that the promisee rely reasonably. This emerging synthesis is the most accurate statement of promissory estoppel in at least ten states governing over half the population of the United States. Litigation needs appear to drive the change. Local politics do not seem to matter to the new formulation; the law on the ground in Texas, New York, California, Florida, Illinois, Ohio, New Jersey, Massachusetts, and others is much the same, and it is not Section 90. The ‘new’ law is not burdened with Section 90’s glorious purpose, but it is predictable, practical, and just. It is also the trend in jurisdictions where the most cases have occurred. Over 100 years have passed since Williston proposed promissory estoppel. It is time the law became predictable and practical. Perhaps it is time to restate Section 90.
Ricks, Val D, Post Section 90: Promissory Estoppel in the Courts that Use It Most (May 23, 2022).
First posted 2022-05-30 13:45:54
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