Promissory Estoppel as a Consideration Substitute

AuthorFranklin G. Snyder, Mark Edwin Burge
Unit 9
Part Three
Promissory Estoppel as a Consideration Substitute
If you have found the requirement of consideration to be prone to occasional
injustice, you are not alone. Courts have wrestled with the issue of avoiding injustice
in some situations where parties have an enforceable contract, except for its lack of
consideration. In this unit, you will learn about one of the most important vehicles
for enforcing such agreements, the doctrine of promissory estoppel. A proper
understanding of promissory estoppel, however, requires that we begin with a brief
diversion into its origins in the broader concept of equitable estoppel. The easiest way
to do that is to tell you a story. Grab some popcorn and listen closely.
The Plight of Farmer Giles. Suppose back in the 15th centurya time when
property lines were rather hazy given the lack of a good recording systemFarmer
Giles, a prosperous freeholder, wants to dig a new well for his flocks. His land is
adjacent to that of a local magnate, Lord Blicester. Giles talks with Lord Blicester,
who tells him that the boundary line between the two properties lays along a
particular line of trees. Giles, relying on the lord’s statement, goes ahead and digs the
well on what he thinks is his side of the property line. When it is finished, however,
Lord Blicester laughs, slaps his knee, and explains that the boundary line is actually
six rods west of the tree line, so the new well is on the lord’s property. Giles is thrown
off the property and cannot use the well.
The English courts, faced with situations like thiswhere one party had relied
on a false statement of fact made by anotherinvented a doctrine to deal with the
problem. In the law-French used in English courts in those days, it was called
“estoppel.” The word comes from the Anglo-French estopper, which meant “stop up”
(as with a bottle) or “close” (as with a door). Thus, the word “estop” means, quite
literally, “shut up.”
If You’re Not
to Prove It, Then Guess What Happens. In Farmer
Giles’s case, he might set his sheep onto Lord Blicester’s land to use the well. The
lord, in response, would try to assert that the well was on the lord’s property and thus
Giles had no right to use it. But the judges, if they believed Giles, would, in effect
(and in prettier language), tell Lord Blicester to shut up. He would simply be
forbidden to argue that the well was on his property.
The proceedings would go
something like this (translated very loosely from the law French of the period):
BLICESTER: Your honor, the well is on my land so I have a right
to exclude Giles from using it. A man’s castle is his home.
JUDGE: Well, yes, but you tricked him into digging it on your
property by lying to him, didn’t you?
BLICESTER: So what? It isn’t my fault that some of the peasants
aren’t the sharpest needles in the haystack.
JUDGE: So . . . that was a pretty bad thing you did. You’re a bad
person to try and take advantage of your neighbor.
BLICESTER: “Sticks and stones will break my bones.” There’s no
law against lying to your neighbor, is there?
JUDGE: Well, no.
BLICESTER: And a man has the legal right to throw people off
his own property, doesn’t he?
BLICESTER: So why aren’t we done? I obviously win.
JUDGE: Not so fast. To throw him off your land, you have to be
able to prove that it is your land, don’t you?
BLICESTER: Sure. But I can prove that easily, because here’s my
deed to the property that lays the boundaries out correctly. It’s all
straight from the Earl himself. That’s his “X” right there on the
signature line, and his wax seal. I have the scriveners and the surveyors
here to testify.
JUDGE [pretends to cover ears]: La-la-la-laaa! I can’t hear you.
[If you think it unrealistic that a royal courts in the 15th century would rule for a farmer
against a nobleman, then think again. Don’t erroneously assume that rich people all make up a single
class with similar interests. A concern of the Crown in many European countries during this per iod
was to cut away at the power of the nobility who had their own armies, their own personal courts, and
a nasty habit of rebelling every few decades. Increasing the power of rising freedmen and peasants as
against nobles served as a means to suppress the relative power of the nobles and reduce their financial
resources. Of course, the Crown was not nearly so enthusiastic about increasing the power of freedmen
and peasants against the Crown itself. The moral o f the story is that you some times you need a
scorecard to tell who is doing what to whom and why.Eds.]

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