미국 계약법상 Promissory Estoppel 법리 연구

The concept of promissory estoppel and, the term itself, was coined by Samuel Williston in the 1920 edition of his treaties where he pulled together an assortment of cases where promises without consideration had been enforced on one theory or another. The common thread through these cases was that the promisee had relied on the promise. In 1932, through the combined efforts of Williston and Corbin, Section 90 of the Restatement of Contracts adopted the concept as an orthodox doctrine of contract law. Since its adoption by the Restatement, the courts have greeted it with broad support. Although in its original formulation, it was a substitute for (or the equivalent of) consideration, it has since grown from a consideration substitute to a doctrine that provides a remedy for many promises or agreements that fail the test of enforceability under many traditional contract doctrines, including indefiniteness, failure to comply with the Statute of Frauds, non-compliance with the parol evidence rule and more. Promissory estoppel has been an expansion of equitable estoppel. In addition to is equitable estoppel ancestry, promissory estoppel has been extracted as a general principle from a number of recurring decisions where promises were enforced under conditions which were difficult, and sometimes impossible, to explain in terms of the doctrine of consideration. The essence of the promissory estoppel idea is that the maker of a promise may be bound by that promise, even though it is not supported by consideration, if the promisee relies upon the promise to her detriment, and the promisor should have foreseen this reliance. The promise will be enforced only if injustice can be avoided by the enforcement of the promise. The most common measure of damages in promissory estoppel actions is the expectation measure or reliance measure case by case. Promissory estoppel has been applied in the following areas: promises in the family, promises to make a gift of land, gratuitous agencies and bailments, charitable subscriptions and marriage settlements, reliance offers, promises under indefinite agreement, promises made during the course of preliminary negotiations and so on. Because promissory estoppel may be used in any context in order to do justice, the damages to be awarded may be generally limited to the amount to avoid the injustice. The Restatement (Second) has embraced and enlarged the concept. Promissory estoppel may now be viewed as a mender of ailing contracts.