American Contract Law for a Global Age, 2017a

BLICESTER: That’s crazy.
JUDGE: No, that’s estoppel. When you lie and then try to take
advantage of it in a court, we judges will use our inherent equitable
powers to prevent ourselves from helping you do it. We do that by
making you shut up.
BLICESTER: But the proof is right here!
JUDGE [hammers gavel]: Shut up. Bailiff, see his lordship out.
Next case!
Equity Says You Can’t Have It Both Ways. This “equitable” power of judges
makes a good deal of sense. It’s one thing for someone to cheat another. It’s something
very different for courts to help someone use the law to cheat. Where one party has
lied and tries to take advantage of that lie, he or she will be estopped to contradict
the previous lie.
Over time, however, the doctrine of estoppel—originally called “estoppel in
pais” (roughly, “estoppel by your own conduct”), became broader. There began to be
categories, such as estoppel by deed, estoppel by record, and estoppel by silence, but
all of these ultimately came to be categorized, in American law, as “equitable
estoppel.” Judges began to apply the principle to situations in which the speaker did
not deliberately lie, but was merely negligent about the truth. Finally, the principle
came to be applied even in situations where the facts turned out to be untrue even
though the speaker was acting entirely in good faith. All of these forms of equitable
estoppel, however, applied only to statements of fact, not to promises.
Reliance on What? People do, however, rely on many statements that are not
facts, including opinions, predictions, and promises. When A makes a promise to B,
B might well rely on that promise. If the promise is in the form of a contract, reliance
by the promisee is reasonable due to the promise being enforceable at law. If the
promise is made by someone you trust, reliance may be reasonable based on that trust
relationship. But what if you rely on a promise from someone you hardly know, and
it is not the kind of exchange transaction we saw in our consideration cases? Will the
law enforce a promise just because you relied on it?
The answer, perhaps surprisingly, is yes—sometimes. Because the doctrine of
equitable estoppel requires a false statement of fact, judges developed a new doctrine
based on an unkept promise and called it “promissory estoppel.” Rather than basing
the enforceability of a promise on the presence of absence of consideration, promissory
estoppel is grounded in the concept of reliance.
Promissory Estoppel Is Something, But Not Everything. After suffering
through the study of consideration and its technicalities, many law students become
overly attached to promissory estoppel, viewing it as a solution for every injustice
that occurs based on the absence of an otherwise enforceable contract. The doctrine,
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158 CHAPTER III: CONSIDERATION