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Promissory Estoppel: Navigating Legal Waters for New Lawyers

Updated: Jul 3

Promissory Estoppel: Navigating Legal Waters for New Lawyers

Promissory estoppel prevents a party from going back on a promise, even if a legal contract does not exist.  It’s crucial in cases where reliance on a promise has led to a substantial change in position.

Promissory estoppel is often used to enforce agreements that might otherwise be unenforceable under contract law.

Promissory Estoppel vs. Traditional Contract Requirements

There are key differences between promissory estoppel and traditional contract formation which can result in situations where promissory estoppel can provide a legal remedy where strict contract law will not. 

Traditional contract formation requires a meeting of the minds between parties, with a clear offer, acceptance, and consideration.  Under the Statute of Frauds, some contracts must be in writing to be enforceable.

In the end, a contract creates a legally enforceable obligation for two parties to perform their respective promises.

The Doctrine of Promissory Estoppel protects the reasonable expectations of one party who relied on a promise made by another, even if there was no formal contract.  It is based on fairness to prevent unjust enrichment.

Promissory estoppel considers the specific promises and the reliance upon them by one party, not necessarily a formal agreement between the parties.  It requires the relying party to have suffered a loss or changed their position based on a promise.

Traditional contract formation relies on both parties expressing their consent and exchanging something of value, while promissory estoppel is based on one party's reasonable reliance on a promise made by another.

Simply put, promissory estoppel acts as an equitable principle to prevent injustice in situations where someone relies on a promise in good faith and suffers a loss as a result.


The Role of Promissory Estoppel in Negotiations and Business Deals

Role of Promissory Estoppel in Negotiations and Business Deals

Promissory estoppel can play a significant role in negotiations and business deals, even though it doesn't directly create contracts.

Promissory estoppel essentially prevents injustice when one party relies on a promise made by another party, and suffers a loss due to that reliance.

Unlike traditional contracts, promissory estoppel doesn't require a formal agreement with mutual manifestation of consent and consideration.  It focuses on a promise, the reliance on that promise, and the detrimental consequences of that reliance.

Promissory estoppel can be applied in various situations during negotiations and business deals.

If one party makes a clear promise during negotiations, and the other party relies on that promise by taking specific actions (e.g., investing resources, changing plans), promissory estoppel might prevent the first party from backing out if doing so causes harm to the relying party.

If negotiations stall, but one party continues to act based on the understanding reached so far, promissory estoppel might be invoked to enforce some aspects of the incomplete agreement.

Alternatively, if a party makes verbal assurances or representations during negotiations that induce the other party to rely on them, promissory estoppel might offer protection if those assurances are broken.

Please note, promissory estoppel isn't a substitute for a formal contract. It's an equitable doctrine applied at the judge's discretion, meaning its application can be uncertain.  As a result, courts will scrutinize the elements of promissory estoppel carefully.

For example they will determine if the promise is clear and specific.  The court will have to be convinced that the relying party has a reasonable basis for relying on the promise.

Finally, it must be demonstrated with clarity that the relying party suffers a significant loss as a result of their reliance.

Using promissory estoppel strategically can be risky, as its successful application depends heavily on the specific facts and the court's interpretation.

Drafting a clear and written agreement at the conclusion of negotiations is a much better alternative in business deals to relying on promissory estoppel after the fact.

Promissory Estoppel in Employment Law

Promissory Estoppel in Employment Law

In the context of employment law, promissory estoppel can arise when an employer makes a promise to an employee, the employee reasonably relies on that promise, and suffers detriment as a result. While not creating a traditional contract, it can hold legal implications for both parties.

For example, if an employer makes a clear and unequivocal offer of employment, and the employee takes specific actions relying on that offer (e.g., quitting another job, relocating), promissory estoppel might protect the employee if the offer is withdrawn unfairly.

Similarly, unfulfilled promises of specific promotions or salary increases, accompanied by the employee's reasonable reliance and actions taken (e.g., declining other opportunities), could potentially be subject to promissory estoppel claims.

Written policies in employee handbooks or company manuals outlining specific procedures for termination, disciplinary actions, or benefits could be considered promises.

If an employer deviates from these policies without proper justification, and the employee suffers harm as a result, promissory estoppel might be invoked.

Employees need to demonstrate a clear promise, reasonable reliance, and demonstrable harm to successfully claim promissory estoppel.  Courts will weigh the specific circumstances of each case, making the successful application of promissory estoppel unpredictable.

Even if successful, promissory estoppel might not guarantee the promised outcome (e.g., the job offer) but could lead to damages or reinstatement in specific situations.

Employers should always exercise caution when making promises, ensure clarity, consider potential reliance, and document communication to minimize the risk of estoppel claims.

Avoiding Promissory Estoppel Claims in Practice

Avoiding Promissory Estoppel Claims in Practice

Avoiding promissory estoppel claims in practice requires proactive measures by both employers and employees.

Employers must be mindful of the language communicated (written or verbal).  It’s best to avoid making explicit promises, especially regarding promotions, salary increases, or job security, unless you're prepared to follow through. It’s best to use conditional language when discussing future possibilities.

Employers should maintain clear records of all communication with employees, including job offers, performance reviews, and discussions about changes in employment status.

This will ensure consistency in applying company policies and procedures related to hiring, promotions, terminations, and other employment matters. 

Employees should get everything in writing.  Whenever possible, employees should seek written confirmation of promises made during discussions or negotiations, such as job offers, promotions, or benefits.

If you are relying on a specific promise, clearly document your actions and decisions taken based on that reliance (e.g., declining other opportunities).

Employees should not assume every verbal assurance creates a binding promise. If you’re concerned about unfulfilled promises, raise your concerns with your manager or HR department and document your communication attempts.


Promissory estoppel is a complex legal doctrine with the potential to impact various situations, including negotiations, business deals, and employment law. It exists to prevent injustice.

While it offers a safety net in specific cases where reliance on a promise causes unjust harm, it's crucial to understand its limitations.

Promissory estoppel isn't a substitute for formal contracts. Always prioritize clear, written agreements whenever possible.  The burden of proof lies with the relying party when asserting promissory estoppel.

Demonstrating a clear promise, reasonable reliance, and demonstrable harm is essential for a successful claim.

Application depends on specific circumstances and court interpretation. The outcome is always uncertain, making it a risky strategy to rely on heavily.


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