Any comprehensive examination of recent appellate court decisions will disclose that the legal doctrine of promissory estoppel has not become a significant source of commercial contractual obligation. Although commercial promissory estoppel claims are often made, plaintiff victories are very rare. These results are difficult to reconcile with frequent scholarly contentions to the effect that contemporary courts have become more receptive to claims of promissory estoppel and have liberalized its doctrinal requirements. More important, the promisor behavior that is incidentally disclosed in reported opinions also undermines academic arguments that rules providing for promissory estoppel have commercial utility. The decisions suggest that most commercial actors consider promissory estoppel liability as a risk to be avoided rather than as a valuable opportunity to create contract obligations, and that they make efforts to avoid it whenever possible. Indeed, a review of recent decisions shows that judicial sympathy toward these efforts to avoid liability has begun to alter promissory estoppel doctrine. In several jurisdictions a commercial promisee must now demonstrate what can be called "enforcement reliance"-reliance on a reasonable belief in the legal enforceability of the promise-in addition to mere "performance reliance"-reliance on a reasonable belief that the promise will be performed. These decisions require that the promisor not only make a reliance-inducing promise, but also clearly express an intention to be legally bound. This article argues that the new requirement is an appropriate default rule for non-bargain, commercial promises because it gives effect to the parties' most probable motives and intentions concerning enforcement.
The New Requirement of Enforcement Reliance in Commercial Promissory Estoppel: Section 90 as Catch-22, 1997 WIS. L. REV. 943