| SOURCE | POSITION | THESIS | ARGUMENT STRUCTURE | COMMENTARY |
| E Cooke, The Modern Law of Estoppel (Oxford: Oxford University Press, 2000). | Introductory textbook on the historical developments of estoppel. | Attempts to find a unified (although not seamless) account of estoppel, along with practical guidelines for application (especially raising a party’s expectation); moreover argues estoppel “should never be static” and must evolve to address injustices. | Is “estoppel in one area of law or several”; is it “possible to construct a unified doctrine”; how do we explain “estoppel within a law of obligations”…? (4) | Explicitly excludes estoppel per rem judicatam; includes “formal estoppels” in chapter 2; looks at the history and doctrinal evolution in latter chapters; categorizes estoppel as “formal” and “reliance-based.” There are a lot of useful case references (mostly English). There are a number of other interesting “departures from the norm” (155). The author also devotes a chapter to addressing the question of “too many labels” (54) and the number of types of estoppel. |
| Larissa Katz, “Blowing Hot and Cold: The Role of Estoppel” in Paul B Miller & John Oberdiek, ed, Civil Wrongs and Justice in Private Law (Oxford: Oxford University Press, 2020) 131. | Estoppel from a private law procedure theory lens. | It argues that a principle of estoppel is a central component of a decentralized and popularized form of public administration, in which private rightsholders— alongside of judges and other public officials— participate in forming and stabilizing the private law order. | The author frames the principle of estoppel as having a regulative function with respect to the “authority rights-bearers have to determine how in fact things stand between themselves and others.” (132) This authority is used by private actors to govern their own rights. | Estoppel is understood thinly (“pure” estoppel) as a “principle against self-contradiction” and “a basic principle of private law procedure.” (131) The author also distances the principle of estoppel from other common ideas related to unconscionability. Estoppel has a more basic function in embedding the private actor into the courts through authoritative declarations of their rights (and stopping them from “blowing hot and cold at the same time”). |
| Juliet P Kostritsky, “The Rise and Fall of Promissory Estoppel or is Promissory Estoppel Really as Unsuccessful as Scholars Say It Is: A New Look at the Data” (2002) 37:2 Wake Forest L Rev 531. | Empirical approach to promissory estoppel. | Responds to the argument that promissory estopped in unimportant (Robert Hillman and Sidney De Long), and claims that estoppel can promote efficiency. | Gilmore (1974) suggested the central role of promissory estoppel, but empirical challenges (Hillman and De Long) showed that courts rejected estoppel claims. The author argues that the rejection of estoppel claims have a different explanation: weak evidence (and a failure to control for qualitative factors). | An interesting upshot of this paper is the suggestion that promissory estoppel is efficient and courts have been using efficiency as reasons to hold in favor of estoppel claimants. |
| Charles L Knapp, “Rescuing Reliance: The Perils of Promissory Estoppel” (1998) 49:Issues 5 & 6 Hastings LJ 1191. | Doctrinal argument for reliance based promissory estoppel. | A doctrinal/historical look reveals a common thread of reliance which supports promissory estoppel. | The author provides a historical overview of promissory estoppel. The author finds reliance to support promissory estoppel as a doctrine; moreover, the author further suggests that equity is crucial for contract law. | This article is over 100 pages, but offers a close look at the early debate on estoppel in the 80s. It is a good starting point for diving into the literature. It is interesting to see the enormous influence of Gilmore (1974) in sparking such debates. |
| Douglas Lichtman, “Rethinking Prosecution History Estoppel” (2004) 71:1 U Chicago L Rev 151. | Empirical assessment of prosecution history estoppel for patents (in a US context). | Prosecution history estoppel has evidentiary presumptions that favor parties based on arbitrary criteria; as such, a better rule would take a more attenuated approach. | The author starts with a definition of prosecution history estoppel (153) and raises empirical issues based on the arbitrariness of examiners and the categorization of technologies. Patent prosecution often involves changes to the language, but there is a question of how these changes ought to be considered as evidence in a claim. | This article is a bit esoteric in that its notion of estoppel is within the US patent law context. Notably, Canada does not follow the US in this regard |
| Knapp, Charles L. “Reliance in the Revised Restatement: The Proliferation of Promissory Estoppel.” Columbia Law Review, vol. 81, no. 1, January 1981, p. 52-79. HeinOnline. | A doctrinal analysis of reliance and promissory estoppel in Restatement (Second) of Contracts. | The Restatement (Second) and its broadening of promissory estoppel is a step towards reliance theories/ | The author looks closely at the Restatement (Second), specifically sections 87, 90, and 139. | The author further suggests other reliance-based principles, like good faith and unconscionability, will further evolve. |
| Avery Katz, “When Should an Offer Stick–The Economics of Promissory Estoppel in Preliminary Negotiations” (1996) 105:5 Yale LJ 1249. | An economic (rational choice) look at promissory estoppel during bargaining and formation. | “…the efficiency of promissory estoppel in preliminary negotiations depends in large part on which party holds the bulk of the bargaining power ex post. If the original offeror holds the bargaining power, then the modem doctrine that holds her to her offer is likely to provide the more efficient rule, other things being equal.” (1256-7) | “The level of reliance that is privately profitable for the parties will coincide with the socially optimal level under two conditions: The person who controls the reliance must enjoy its marginal benefits, and he or she must also pay the costs when it is wasted. Since in preliminary negotiations both parties control the reliance and the party with the ex post bargaining power gets the gains, it is that party who should also bear the costs.” (1257) | Interestingly, this article looks at promissory estoppel in the precontractual setting. The main economic problem is wasted reliance and how to ensure reliance is overall socially optimal. |
| Daniel A Farber & John H Matheson, “Beyond Promissory Estoppel: Contract Law and the Invisible Handshake” (1985) 52:4 U Chicago L Rev 903. | A survey of promissory estoppel cases to support the doctrinal expansion of promissory estoppel as its own distinct contractual obligation (and not reliance-based). | A survey of courts shows that promissory estoppel is being transformed into a distinct contractual obligation that is congruent with economic and moral ends. | Courts have moved away from reliance in promissory estoppel and whatever exists of it is merely a formality; as such, estoppel cannot be properly said to be a reliance-based recovery. Their main conclusions from their survey are in four parts (907-915). | An interesting part of the authors’ survey is how promissory estoppel is being expanded to include awards of expectation damages and specific performance (see starting on 907). They also seem to be expanding what counts as consideration. |
| Juliet P Kostritsky, “A New Theory of Assent-Based Liability Emerging under the Guise of Promissory Estoppel: An Explanation and Defense” (1987) 33:3 Wayne L Rev 895. | A doctrinally analysis of promissory estoppel and a proposal for a unifying theory for its place in contract law. | “This Article posits that promissory estoppel, together with other orthodox doctrines, are merely substitute doctrinal methods for showing the assent required for an enforceable consensual exchange.” (902) | “This new approach to contract suggests that liability obtains when either (1) complete contracting is possible and an explicit bargain or a bargain plus formalities is reached, or (2) persuasive barriers to, or explanations for the parties dispensing with, explicitly reciprocal or formalized contracting exist and a plausible benefit to the promisor can be identified.” (905-6) | Promissory estoppel is not reliance-based, rather it is bargain-based. Promissory estoppel should not be thought of as an independent source of obligations, but merely as extending obligations. Estoppel is employed in most cases where there are “barriers to bargain,” like differences in knowledge and having a history of prior dealings, and it seeks to compensate parties for the barrier. |
| Randy E Barnett & Mary E Becker, “Beyond Reliance: Promissory Estoppel, Contract Formalities, and Misrepresentations” (1987) 15:3 Hofstra L Rev 443. | A doctrinal look into promissory estoppel and how courts have treated estoppel in relation to liability. | “In this article, we suggest that promissory estoppel serves two of the functions served by traditional contract and tort remedies available to parties in consensual relationships: the enforcement of some promises intended as legally binding and the imposition of liability to compensate for harm caused by some misrepresentations.” (445-6) | “In section I, we discuss promissory estoppel cases which can be understood as contractual in the broad sense that the promisor apparently intended to be legally bound by the promise, though some formal requirement for an enforceable contract may be missing. In section II, we discuss those cases in which liability cannot be understood as entirely contractual. In these cases, courts have used promissory estoppel to afford a remedy for some promissory misrepresentations not remedied by traditional contract and tort doctrines.” (448) | An interesting point the authors explains is that, contrary to interpretations of the Restatement (Second), the damages in promissory estoppel cases are often expectation damages. Moreover, promissory estoppel is appropriately a part of contracts, although some parts can be understood as being a part of torts. We also see Barnett’s consent theory dealing with promissory estoppel: while a promisor might not have met the formal requirements, they still intended to be bound to a promise. |
| Michael Gibson, “Promissory Estoppel, Article 2 of the U.C.C.,and the Restatement (Third) of Contracts” (1988) 73:3 Iowa L Rev 659. | A critique of reliance-based theories, mainly arguing that Llewellyn excludes promissory estoppel in the UCC (and more generally in the commercial context). | “This Article will argue that Karl Llewellyn consciously rejected the theory of promissory estoppel when he drafted Article 2, and that he believed reliance should play only a minimal role in both the law of sales and the law of contract.” (661) | “This Article has three purposes. The first is to explore the relationship of promissory estoppel and reliance to the formation sections of Article 2 of the Uniform Commercial Code.’ 7 The second is to analyze what effects that relationship should have on judicial use of promissory estoppel in transactions concerning the sale of goods, and to determine whether modem judicial application of promissory estoppel to goods transactions-an application which is far more common than one might expect’ 8-has been proper. The third purpose is to discuss what effect experience with promissory estoppel under Article 2 should have on common law use of that doctrine.” (661) | An interestingly claim by this author is that the expansion of promissory estoppel needs to be contained. |
| Edward Yorio & Steve Thel, “The Promissory Basis of Section 90” (1991) 101:1 Yale LJ 111. | Promissory estoppel based on enforcing promissory obligations instead of reliance-based protection. | “As this Article shows, however, these commentators are wrong about the way courts have decided Section 90 cases. Rather than using Section 90 to compensate promisees for losses suffered in reliance, judges use it to hold people to their promises by granting specific performance or by awarding expectation damages.” (112) | The authors take a close look at the historical developments of Section 90 of the Restatement, and shows that specific performance and expectation damages are the routine remedy. Courts have not been primarily concerned with remedies or protecting reliance; rather, they focus on the enforcement of the right promises. | The authors conclude that, like consideration doctrines, reliance should be thought of as a tool for determining serious promises. |
| Jay M Feinman, “Promissory Estoppel and Judicial Method” (1984) 97:3 Harv L Rev 678. | A doctrinal look at the history of promissory estoppel and an argument for bargain theory. | The author argues for bargain as the unifying principle (with reliance having a secondary role); while reliance is important, expectation damages suggest that bargain is the core. | “Part I chronicles the evolution of promissory estoppel against the backdrop of the classical conception of contract law and the attack on that conception. Part I then examines the ways in which courts have applied the elements of the doctrine of promissory estoppel and suggests that such applications pose continuing problems for contract law. Part HI explores and criticizes the doctrinal applications as manifestations of competing methods of contract adjudication.” (679) | |
| Jay M Feinman, “The Meaning of Reliance: A Historical Perspective” (1984) 1984:5 Wis L REV 1373. | A historical, interpretive look at reliance. | Promissory estoppel as a doctrine has a multitude of sources and its source cannot be pinned down to one. | The author traces the history of how protections of reliance (like promissory estoppel) developed. | The author makes the point that the historical analysis contributes to critical legal studies, and possibly expanding reliance to offer greater protection. |
| Jay M Feinman, “The Last Promissory Estoppel Article” (1992) 61:2 Fordham L Rev 303. | A rejection of promissory estoppel and its developments, especially reliance theories. | The author suggests that the focus on promises as the source of liability needs to change; instead, relationships need to be the starting point. | The author rejects the Yario & Thel (1991) suggestion that promissory estoppel is based on either promise enforcement or reliance protection. Instead, we should shift our focus to relational obligations. | A short but rich article. It also engages Bernett & Becker(1987), Kostritsky (1987), and Farber & Matheson (1985). |
| Randy E Barnett, “The Death of Reliance” (1996) 46:4 J LEG EDUC 518. | A version of consent theory: promissory estoppel should be enforced in relation to a promisor’s intention to be legally bound to a promise. | Contrary to reliance theories, promissory estoppel is not about detrimental reliance, rather it is about picking which promises to enforce. | The discussion starts with Fuller and Gilmore, and their influence on the “new consensus” (522) in the 80s. The author then moves to suggest a reform of reliance theories (527). | |
| Eric Mills Holmes, “Restatement of Promissory Estoppel” (1996) 32:2 Willamette L Rev 263. | A US state-by-state look at promissory estoppel proving its relevance. | Contrary to the prediction of critics, promissory estoppel is not dead. | The author offers a four-stage doctrinal evolution of promissory estoppel (same as below: Holmes 1996), then dives into US jurisdiction. | A very long (over 250 pages) article and a fastidious look into American caselaw on promissory estoppel. |
| Eric Mills Holmes, “The Four Phases of Promissory Estoppel” (1996) 20:1 Seattle UL Rev 45. | The author looks at the development of promissory estoppel from broader principles in equity. | The doctrinal evolution of estoppel can be understood in four phases: estoppel, contract, tort, and equity. Understood as such, promissory estoppel is distinct from contract or tort (and deflationary views are wrong). | The author tackles four questions (49) which coincide with the four phases of promissory estoppel. In short: “Is estoppel from equit the basis of promissory estoppel, as its name suggest?”; “With its basis in promise and assent, is promissory estoppel a contract doctrine”; “Is the root foundation of promissory estoppel grounded in the tort of detrimental reliance?”; “Is modern equity the “mother mold” of promissory estoppel with the doctrine’s basis grounded in the equitable principles of good faith and conscience?” | The author is great at distilling from a large volume of literature (see footnote on promissory estoppel on 50). |
| Andrew Robertson, “Situating Equitable Estoppel within the Law of Obligations” (1997) 19:1 Sydney L Rev 32. | A doctrinal look into estoppel in Australia. | “The central thesis of this article is that equitable estoppel is, and should be, a doctrine which is organised around the concept of detrimental reliance and which is part of the law of wrongs.” (33) | This article looks at the development of reliance-based doctrines of estoppel, then looks at the debate on how this doctrine fits within the law of obligations (i.e. between theories of promise, conscience, and reliance). | The Australian cases cited suggest a reliance-based view. |
Philo-so-fun 