Dov A. Waisman (Southwestern Law School) has posted Foreseeability and Reasonableness in Promissory Estoppel on SSRN. Here is the abstract:
The law of promissory estoppel contains a little-noticed puzzle relating to the way in which the justifiability of the plaintiff’s reliance is determined in American courts. Many jurisdictions now require the plaintiff asserting a promissory estoppel claim to prove that their reliance on the defendant’s promise was both reasonable and foreseeable. However, there does not appear to be even a single published case in which the court concluded that the plaintiff’s reliance satisfied one of those requirements but not the other. If, as some commentators have suggested, the reasonableness and foreseeability requirements are more-or-less equivalent, it is somewhat puzzling that American courts continue to state and apply the requirements separately. More generally, promissory estoppel’s justifiability requirement has received scant attention in the literature. There has been little discussion of the rationales for the reasonableness and foreseeability requirements, of the relationship between them, or of whether it makes sense for courts to impose both as opposed to just one or the other.
This article attempts to fill these gaps. It shows that the reasonableness and foreseeability inquiries, though often yielding the same result, are not equivalent. They can point in different directions in certain circumstances. Moreover, they have very different rationales. To analogize to tort, the foreseeability requirement fulfills the function of the proximate cause requirement, while the reasonableness requirement does the work of the contributory negligence and comparative fault doctrines. Based on these points, I argue that courts are right to inquire separately into whether each requirement is satisfied but should be mindful of how the requirements are interrelated and of the standard types of cases in which they can come apart. I further argue that, while foreseeable reliance should be a necessary condition of promissory estoppel liability, it is not clear that reasonable reliance should be required in all cases. Just as the law of negligence permits recovery in certain circumstances where the defendant should have foreseen unreasonably risky conduct by the plaintiff, the law of promissory estoppel should permit recovery in certain types of cases in which the promisor intended, foresaw, or should have foreseen unreasonable reliance by the promisee.
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