What can we carry away from Chapter 1? That if the question you must ask yourself before we begin our study of Chapter 2 next Thursday morning. That is the question I must ask myself before I begin to lead the discussions we will have about Chapter 2, 3 and 4. The answer is both simple and complex. Chapter 1 introduced us to two alternative rules for determining whether a promise is enforceable — bargained for exchange and foreseeable unbargained for reliance. The first of these we call consideration, the second we call §90 or promissory estoppel. Chapter 1 also introduced is to two very different approach to rule making — specific, structured rules and rules based upon a concept of justice. We have, finally, seen two ways in which nonstatutory law evolves, by individual decisions by courts and by the influential writings of lawyers, whether in law review articles or in the work product of the American Law Institute. Perhaps you have also caught a glimpse of how law evolves — chameleon-like, it changes to suit the social, cultural and economic environment to which it applies. Unlike the chameleon, however, the law does more than reflect those changes, it also sometimes promotes them.

Let’s take these one at a time. First, let’s define the two ways in which promises may be found to be enforceable. We are helped a great deal by the efforts of the American Law Institute to formulate “black letter rules” for consideration and unbargained-for reliance. The Restatement suggests that it is necessary to show bargained for exchange in the examination of alleged consideration. While the courts should not require equality of exchange, the exchange must be real and not just symbolic (except that nominal consideration may be sufficient to support option contracts). Unbargained for reliance can render a promise enforceable if the promisor has reason to expect reliance and the reliance occurs and injustice can be avoided only by enforcing the promise (but the remedy should be limited to the amelioration of the injustice that has occurred. We will be discussing all of these factors at greater length in future chapters of the Fuller and Eisenberg casebook. Note that these two means of enforceability of promises are doctrine that has evolved through the process of common law decision making rather than statutory effort. The only statutory impact on contracts law that we have seen thus far has eliminated or sharply curtailed another method of rendering a promise enforceable - the mechanism of the seal. We will see that the Uniform Commercial Code has added an important statutory rule, but study of that provision lies ahead of us.

The rules of consideration are rooted in characterization of facts - does the court believe that the facts of the “exchange” support the argument that there is a bargained for exchange to be found in the facts. The rules of §90 or promissory estoppel are quite different. They ask the court on the one hand to characterize a fact - was the asserted reliance the result of the promise made - but also to make a judgment about justice and the avoidance of injustice. These two bases for legal doctrine - characterizing facts pursuant to legal rules and application of principles of justice - are quite different and require different kinds of reasoning and argumentation. As lawyers, we must learn to work with both because they are both part of our legal system in general, and of contracts law in particular.

Seals were a response to a basically illiterate society. Consideration is rooted in the mercantile and capitalist economic system that developed after the end of the feudal period. Promissory estoppel, arguably, was the result of moral sensibility responding to the impersonal and distinctly unsentimental rules defining consideration in a way which satisfied commercial needs but not either personal relationships nor commercial relationships characterized by profound differences in economic power. Again, we will see more of these issues in the chapters we now turn to in our studies of contracts law.

So, Chapter 1 is an introduction to the study of law, to part of the history of Contracts law, to the doctrines of consideration and promissory estoppel and to an examination of the different kinds and sources of legal rules. All of these aspects of Contracts law will be developed during our course. You need not - indeed, should not - feel confident that you fully understand either of these two doctrines. Chapter 2 in particular studies the issues of the bargain concept at much greater width and depth.