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Part V

Part V. Enforceability in the Absence of a Contract. R2 § 90: Promissory Estoppel.

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Part V

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  1. Part V Enforceability in the Absence of a Contract

  2. R2 §90: Promissory Estoppel (1) A promisewhich the promisor shouldreasonably 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.

  3. 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. * * *

  4. 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.

  5. 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....

  6. 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 fulfillany cautionary, deterrent and channeling functions it may serve.

  7. 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.

  8. 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.

  9. 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.

  10. 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 ….

  11. 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. …[A]n intention to make, a gift must be shown to defeat restitution ....

  12. 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.

  13. RR § 1. Unjust Enrichment A person who has been unjustly enriched at the expense of another is required to make restitution to the other.

  14. 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….

  15. 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….

  16. 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).

  17. RR § 116. Preservation of Another’s 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 chargetherefor, (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.

  18. RR § 117(1). Preserving Another’s Things or Credit A person who, although acting without the other’s 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.

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