Enforceability in the Absence of a Contract

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Part V

• Enforceability in the Absence of a Contract

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R2  90 Promissory Estoppel

• (1) A promise which the promisor should
  reasonably expect to induce action or forbearance
  on the part of the promisee or a third person and
  which does induce such action or forbearance is
  binding if injustice can be avoided only by
  enforcement of the promise. The remedy granted
  for breach may be limited as justice requires.
• (2) A charitable subscription or a marriage
  settlement is binding under Subsection (1)
  without proof that the promise induced action or
  forbearance.

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R2  139(1) Promissory Estoppel

• A promise which the promisor should reasonably
  expect to induce action or forbearance on the
  part of the promisee or a third person and which
  does induce the action or forbearance is
  enforceable notwithstanding the Statute of Frauds
  if injustice can be avoided only by enforcement
  of the promise. The remedy granted for breach is
  to be limited as justice requires.

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R2  139(2) Avoiding Injustice

• In determining whether injustice can be avoided
  only by enforcement of the promise, the following
  circumstances are significant
• (a) the availability and adequacy of other
  remedies, particularly cancellation and
  restitution
• (b) the definite and substantial character of the
  action or forbearance in relation to the remedy
  sought
• (c) the extent to which the action or forbearance
  corroborates evidence of the making and terms of
  the promise, or the making and terms are
  otherwise established by clear and convincing
  evidence
• (d) the reasonableness of the action or
  forbearance
• (e) the extent to which the action or forbearance
  was foreseeable by the promisor.

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R2  139. Enforcement by Virtue of Action in
Reliance

• Comment
• a. Relation to other rules. This Section is
  complementary to 90, which dispenses with the
  requirement of consideration if the same
  conditions are met, but it also applies to
  promises supported by consideration. Like  90,
  this Section states a basic principle which
  sometimes renders inquiry unto the extent to
  which reliance furnishes a compelling substantive
  basis for relief in addition to the expectations
  created by the promise or to the extent to which
  the necessary as to the precise scope of other
  policies....

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R2  139. Enforcement by Virtue of Action in
Reliance

• Comment
• b. Avoidance of injustice. Like 90, this
  Section states a flexible principle, but the
  requirement of consideration is more easily
  displaced than the requirement of a writing....
  Subsection (2) lists some of the relevant factors
  in applying the latter requirement. Each factor
  relates either to the extent to which reliance
  furnishes a compelling substantive basis for
  relief in addition to the expectations created by
  the promise or to the extent to which the
  circumstances satisfy the evidentiary purpose of
  the Statute of Frauds and fulfill any
  cautionary, deterrent and channeling functions it
  may serve.

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R2  129. Action in Reliance(Land Contract)

• A contract for the transfer of an interest in
  land may be specifically enforced notwithstanding
  failure to comply with the Statute of Frauds if
  the party seeking enforcement, in reasonable
  reliance on the contract and on the continuing
  assent of the party against whom enforcement is
  sought, has so changed his position that
  injustice can be avoided only by specific
  enforcement.

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R2  87(2). Option Contract

• An offer which the offeror should reasonably
  expect to induce action or forbearance of a
  substantial character on the part of the offeree
  before acceptance and which does induce such
  action or forbearance is binding as an option
  contract to the extent necessary to avoid
  injustice.

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R2  86 Promissory Restitution

• (1) A promise made in recognition of a benefit
  previously received by the promisor from the
  promisee is binding to the extent necessary to
  prevent injustice.
• (2) A promise is not binding under Subsection
  (1)
• (a) if the promisee conferred the benefit as a
  gift or for other reasons the promisor has not
  been unjustly enriched or
• (b) to the extent that its value is
  disproportionate to the benefit.

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R2  86 Promissory Restitution

• Comment
• b. Rationale. Although in general a person who
  has been unjustly enriched at the expense of
  another is required to make restitution,
  restitution is denied in many cases in order to
  protect persons who have had benefits thrust upon
  them . A subsequent promise to make
  restitution removes the reason for the denial of
  relief, and the policy of unjust enrichment then
  prevails .

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R2  86 Promissory Restitution

• Comment
• d. Emergency services and necessaries. The law
  of restitution in the absence of promise severely
  limits recovery for necessaries furnished to a
  person under disability and for emergency
  services.... A subsequent promise in such a case
  may remove doubt as to the reality of the benefit
  and as to its value, and may negate any danger of
  imposition or false claim. An intention to
  make, a gift must be shown to defeat restitution
  ....

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R2  86 Promissory Restitution

• Comment
• f. Benefit conferred pursuant to contract. By
  virtue of the policy of enforcing bargains, the
  enrichment of one party as a result of an unequal
  exchange is not regarded as unjust, and this
  Section has no application to a promise to pay or
  perform more or to accept less than is called for
  by a preexisting bargain between the same
  parties. Compare  79, 89. But a promise to
  pay in substitution for the return performance
  called for by the bargain may be binding under
  this Section.

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RR  1. Unjust Enrichment

• A person who has been unjustly enriched at the
  expense of another is required to make
  restitution to the other.

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RR  1. Unjust Enrichment

• Comment
• b. What constitutes a benefit. A person confers a
  benefit upon another if he gives to the other
  possession of, or some other interest in money,
  land, chattels, or choses in action, performs
  services beneficial to or at the request of the
  other, satisfies a debt or a duty of the other,
  or in any way adds to the other's security or
  advantage. He confers a benefit not only where he
  adds to the property of another, but also where
  he saves the other from expense or loss. The word
  benefit, therefore, denotes any form of
  advantage.

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RR  1. Unjust Enrichment

• Comment
• e. Unjust retention of benefit. Even where a
  person has received a benefit from another, he is
  liable to pay only if the circumstances of its
  receipt or retention are such that, as between
  the two persons, it is unjust for him to retain
  it. The mere fact that a person benefits another
  is not of itself sufficient to require the other
  to make restitution therefor. Thus, one who
  improves his own land ordinarily benefits his
  neighbors to some extent, and one who makes a
  gift or voluntarily pays money which he knows he
  does not owe confers a benefit in neither case
  is he entitled to restitution.

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RR 2. Officious Conferring of a Benefit

• A person who officiously confers a benefit upon
  another is not entitled to restitution therefor.
• Comment
• a. Officiousness means interference in the
  affairs of others not justified by the
  circumstances under which the interference takes
  place. The rule denying restitution to officious
  persons has the effect of penalizing those who
  thrust benefits upon others and protecting
  persons who have had benefits thrust upon them
  (see 112).

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RR  116. Preservation of Anothers Health

• A person who has supplied things or services to
  another, although acting without the other's
  knowledge or consent, is entitled to restitution
  therefor from the other if
• (a) he acted unofficiously and with intent to
  charge therefor,
• (b) the things or services were necessary to
  prevent the other from suffering serious bodily
  harm or pain, and
• (c) the person supplying them had no reason to
  know that the other would not consent to
  receiving them, if mentally competent and
• (d) it was impossible for the other to give
  consent or, because of extreme youth or mental
  impairment, the other's consent would have been
  immaterial.

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RR  117(1). Preserving Anothers Things or Credit

• A person who, although acting without the others
  knowledge or consent, has preserved things
  belonging to another from damage or destruction,
  is entitled to restitution for services rendered
  or expenditures incurred therein, if
• (a) he was in lawful possession or custody of the
  things or if he lawfully took possession thereof,
  and the services or expenses were not made
  necessary by his breach of duty to the other,
• (b) it was reasonably necessary that the services
  should be rendered or the expenditures incurred
  before it was possible to communicate with the
  owner by reasonable means,
• (c) he had no reason to believe that the owner
  did not desire him so to act,
• (d) he intended to charge for such services or to
  retain the things as his own if the identity of
  the owner were not discovered or if the owner
  should disclaim, and
• (e) the things have been accepted by the owner.