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Hi Guys,

In contracts today we went over the Drennan case. I have a quick question. What exactly is the difference between 90 and 87 of the restatement? In Drennan Traynor used 90 to enforce the promise, but it appears 87(2) would as well. Can someone please clear this up for me?

Thanks!

RS 90 makes a promise which might reasonably induce action binding on the promisor if injustice can only avoided by enforcing the promise. Promissory Estoppel.

RS 87(2) kicks in an option contract on promise for performance contracts when the promisee begins performance.

Read the official comment to 87. It addresses this directly...

denimchickn wrote:Read the official comment to 87. It addresses this directly...

thank you both. My text didnt have that comment but I looked it up. Makes sense!

Quick question:

So essentially I should be thinking about 87(2) as a method for keeping an offer open/irrevocable for a period of time that will allow the offeree to accept if it chooses, while P.E. is used to enforce a promise.

BCLS wrote:Quick question:

So essentially I should be thinking about 87(2) as a method for keeping an offer open/irrevocable for a period of time that will allow the offeree to accept if it chooses, while P.E. is used to enforce a promise.

87(2) kicks in an option contract at the commencement of performance which makes an offer not revocable if such performance was reasonably foreseeable to induce action. Remember, under classical contracts, an offer was freely revocable at any time until acceptance, and acceptance by performance meant the entire performance had to be complete. So if you started the performance, the offeror could revoke halfway through and you'd be SOL.

Under 87(2), if you make an offer to someone and you can reasonably foresee that that offer would induce someone to action (beginning performance), then when they do begin performance it creates an option contract which bars you from revoking the offer. It does not create a contract - rather, it keeps you from revoking an offer to someone who has begun substantial performance based on the offer. They have already "accepted" the offer by beginning the performance. It's simply a protection for someone who has expended a decent amount of time or effort to start performance based on the offer.

If they fail to complete the performance, you're off the hook. However, if they complete the performance, then you have a full contract.


90 applies more to "gratuitous promises" that induce performance. Under classical contracts, a "gratuitous promise" was not adequate consideration. 90 is a modern contract theory that addresses that when someone begins performance based on such a promise, and that performance was reasonably foreseeable.

kalvano wrote:

BCLS wrote:Quick question:

So essentially I should be thinking about 87(2) as a method for keeping an offer open/irrevocable for a period of time that will allow the offeree to accept if it chooses, while P.E. is used to enforce a promise.

87(2) kicks in an option contract at the commencement of performance which makes an offer not revocable if such performance was reasonably foreseeable to induce action. Remember, under classical contracts, an offer was freely revocable at any time until acceptance, and acceptance by performance meant the entire performance had to be complete. So if you started the performance, the offeror could revoke halfway through and you'd be SOL.

Under 87(2), if you make an offer to someone and you can reasonably foresee that that offer would induce someone to action (beginning performance), then when they do begin performance it creates an option contract which bars you from revoking the offer. It does not create a contract - rather, it keeps you from revoking an offer to someone who has begun substantial performance based on the offer. They have already "accepted" the offer by beginning the performance. It's simply a protection for someone who has expended a decent amount of time or effort to start performance based on the offer.

If they fail to complete the performance, you're off the hook. However, if they complete the performance, then you have a full contract.


90 applies more to "gratuitous promises" that induce performance. Under classical contracts, a "gratuitous promise" was not adequate consideration. 90 is a modern contract theory that addresses that when someone begins performance based on such a promise, and that performance was reasonably foreseeable.

Thanks so much. Very helpful.

The above explanation on 87(2) is very good.

Just a quick note that 87(2) is very much a minority doctrine, and not widely invoked by courts.

kalvano wrote:

BCLS wrote:Quick question:

So essentially I should be thinking about 87(2) as a method for keeping an offer open/irrevocable for a period of time that will allow the offeree to accept if it chooses, while P.E. is used to enforce a promise.

87(2) kicks in an option contract at the commencement of performance which makes an offer not revocable if such performance was reasonably foreseeable to induce action. Remember, under classical contracts, an offer was freely revocable at any time until acceptance, and acceptance by performance meant the entire performance had to be complete. So if you started the performance, the offeror could revoke halfway through and you'd be SOL.

Under 87(2), if you make an offer to someone and you can reasonably foresee that that offer would induce someone to action (beginning performance), then when they do begin performance it creates an option contract which bars you from revoking the offer. It does not create a contract - rather, it keeps you from revoking an offer to someone who has begun substantial performance based on the offer. They have already "accepted" the offer by beginning the performance. It's simply a protection for someone who has expended a decent amount of time or effort to start performance based on the offer.

If they fail to complete the performance, you're off the hook. However, if they complete the performance, then you have a full contract.


90 applies more to "gratuitous promises" that induce performance. Under classical contracts, a "gratuitous promise" was not adequate consideration. 90 is a modern contract theory that addresses that when someone begins performance based on such a promise, and that performance was reasonably foreseeable.

Is 87(2) the 45 for bilateral contracts basically?

Also, the action that is induced does not have to be part performance of the contract. merely preparations or even just foregoing other offers can constitute reliance and force a option contract. Like in the construction Kx scenario. The general contractor doesn't perform his promise in the contract (which is to pay the sub-contractor), the action that is induced by the sub-contractor's promise is the general contractor makes an offer to the developer and foregoes other sub-contractor bids.

for 90 either. It can be quitting your job if you were offered to be given a pension just cause they liked you. No consideration on your part, no bargaining. No classical K. But you quit your job because of their offer and they should have known, so the court does the common sense fix of enforcing it.

It seems like they could be used for the same situations but when the offeree needs to be able to have time to assess risk they use § 87(2) and whenever the offeree needs the K to happen ("if injustice can be avoided only by enforcement of the promise") they use § 90. Am I wrong?

That was a year ago. I don't remember Contracts much, I didn't like the class all that much.

missinglink wrote:The above explanation on 87(2) is very good.

Just a quick note that 87(2) is very much a minority doctrine, and not widely invoked by courts.

fuck...i thought 87 was majority and Baird was minority...think i just lost a few points on today's exam