American Contract Law for a Global Age, 2017a

Unit 9
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CONSIDERATION
Part Three
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Promissory Estoppel as a Consideration Substitute
FOCUS OF THIS UNIT
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 century—a time when
property lines were rather hazy given the lack of a good recording system—Farmer
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 this—where one party had relied
on a false statement of fact made by another—invented 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 Allowed 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
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UNIT 9: PROMISSORY ESTOPPEL AS A CONSIDERATION SUBSTITUTE 155