Or is there, in other words broad leeway for when a judge or a court can decide based on all of the other materical circunstances, when or when not he should enforce an otherwise unenforcable promise?

I don't have access to my college business law textbook for reference, so I can't check. What I remember is this: the affected party has to have reasonably relied on that promise and have incurred some sort of economic loss or damage from that RELIANCE.

It is obvious that not all promises are contracts. but what raises questions to me is, the distinction between estoppable and unenforcable promises seems to be so narrow that you could argue the only party bringing a claim to court of a broken promise would almost definately be those who have suffered damages.

but admitting there are matter of factly unenforceable promises and limiting my question only to those others, what basis does the judge or court have in determinging their enforcability. taking into consideration that what I have already said that most people probably could claim they have a remedy at law (including those who friviously went out and incurred the economic loss (or whatever) with the sole purpose of fitting this narrow definition). To me the distinction beween enforcable contract and estoppable promise seems to be so vague that the only real difference it would make is if the judge was granted broad discretion, i.e. the decision to actually issue the order to estopp the promise was soley his perrogitive....)

This is something that has always been at the back of my head.... but since i don't recall the textbook delving into this level I wanted to ask to be sure

  • ohwilleke: so in other words the judge can't just go by his gut instinct he still has to rely on the doctrine of equity? is that what your saying? – Obi-wan May 20 '20 at 22:38

A claim for promissory estoppel (i.e. a claim for breach of a promise which is supported by reliance rather than consideration) is enforceable if all elements of a claim for promissory estoppel are proven by a preponderance of the evidence, and if no affirmative defenses to the claim are established.

Generally speaking any legal or equitable defense to a claim for breach of contract (e.g. statute of limitations, payment, accord and satisfaction, failure to mitigate damages, illegality, unclean hands), other than lack of consideration, is also available with respect to a claim for breach of promissory estoppel. Furthermore, as part of the prima facie case, in addition to showing actual reliance, it is generally necessary to show that the reliance was reasonable under the circumstances, and that the promise was sincerely intended to be a promise as opposed to a joking rhetorical flourish or an offer to enter into a contract in the future.

  • @RossRidge Good catch. Fixed. – ohwilleke Jun 22 '20 at 19:41

Equitable causes of action are (theoretically) at the discretion of the court

Unlike a clause arising in law, a cause arising in equity is entirely at the discretion of the court. This is due to the different sources of these - the law came from magistrates enforcing the common law who had little to no discretion, equity came from the court of chancellery (i.e. the king's chancellor) and had royal prerogative, that is, the king can do justice as he sees fit without necessarily following the law.

In all common law jurisdictions, the same court now hears both types of cases and many cases will include both legal and equitable basis. It is a point of jurisprudential argument over whether law and equity have "merged", however, the general consensus is that they haven't or, at least, haven't completely.

For example, if you have a legal right, that right can have unjust consequences or be pressed by you in an unjust way, equitable outcomes must be objectively "just". Also, you must come to equity with clean hands but you can come to the law with hands dunked in excrement.

In practice, this gives a court a wider latitude for distinguishing cases when, for example, the plaintiff has acted like a total p*&k.

Promissory Estoppel has elements that must be proved

This is a good starting point:

  1. Some form of legal relationship either exists or is anticipated between the parties. This knocks out a promise from your Tinder date to show up at the pub.

  2. A representation or promise by one party. Either about the way things are or the way things will be.

  3. Reliance by the other party on the promise or representation. Such reliance must be reasonable in the circumstances.

  4. Detriment. No harm, no foul.

  5. Unconscionability. This generally requires the promisor to have acted in "bad faith" in some way. For example, it's not unconscionable to change your mind; it is unconscionable to change your mind knowing the plaintiff is still relying on your promise and keeping your change of mind a secret - this was the unconscionability in Walton Stores (interstate) Ltd v Maher (1988) 164 CLR 387.

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