What is Promissory Estoppel and can you use it?
Let me start off by stating the I am NOT an attorney, and although this post relates to a legal matter you should refer to an attorney in your jurisdiction. Laws and their interpretation may also certainly vary between one legal professional and another.
Promissory estoppel serves to enable an injured party to recover on a promise. There are common legally-required elements for a person to make a claim for promissory estoppel: a promisor, a promisee, and a detriment that the promisee has suffered. An additional requirement is that the person making the claim — the promisee — must have reasonably relied on the promise. In other words, the promise was one that a reasonable person would ordinarily rely on.
Another requirement further qualifies the required detriment component; the promisee must have suffered an actual substantial detriment in the form of an that results from the promisor failing to deliver on his or her promise. Finally, promissory estoppel is usually only granted if a court determines that enforcing the promise is essentially the only means by which injustice to the promisee can be rectified.
So, what does this all mean in terms of practical terms? Lets say that a photographer was asked to do a photoshoot on a certain concept. The specifics of who is involved, when will it happen, where will it happen, what exactly is involved have all been spelled out. The photographer then goes ahead and rents a studio for several hours, hires a makeup artist, and arranges to have several expensive props on site. The Promisor is the person who has made arrangements with the photographer to conduct the photoshoot. This could be a client, model, or anyone else that has promised the photographer that the photoshoot was going to happen. The Promisee is the photographer who has been promised (contracted) with the photographer that a photoshoot is desired.
On the morning of the shoot, the only people at the rental studio are the photographer and makeup artist. The client never appeared and despite cell phone calls the client can not be reached. The detrimental component (injustice) can be established by the fact that the photographer reasonably believed that the client was going to appear at said date and time and place. The photographer has suffered a financial loss by the fact of a studio rental, makeup artist fee, props, not to mention time!
Another example may be of a trade for print relationship with a model (TFP). A model (Promisee) travels to a photographers studio and in exchange for her time has been told by the photographer (Promisor) that she will get xx number of prints of files by the end of the week in exchange for her efforts. A week goes by, then several weeks, then a month and no files are given to the model. She attempts to contact the photographer without results. The model in this case has suffered a (detrimental component) in that she has spent travel money, her time, and has not received anything in exchange.
Potentially, the photographer in the first case, and the model in the second case could file in court based on Promissory Estoppel (contract law) in that a promise was made, the promise was reasonable, and may potentially recover damages due to the fact that there was detriment as a result of the promise not being completed (injustice).
Does there need to be a formal contract? No, emails or other non formal communication may be the basis for a successful outcome on the injured persons part. If the judge agrees with the injured party, damages could be awarded based the fact that the injured party relied on the promise being completed.
Obviously, if there are extreme circumstances that prevented the 'promisor' from completing the promise, this could be taken into account. For example, a car accident in the studio rental case may have prevented the client/ model from appearing. In the second case, an extended illness may have prevented the photographer from delivering files or prints.
Keeping a promise is always a good thing...and if you can't make it right with the person to whom the promise was made!!
Bob Barford is a published photographer in So. PA.