42 Tex. Tech L. Rev. 913 (2009-2010)
Reliance on Oral Promises: Statute of Frauds and Promissory Estoppel

handle is hein.journals/text42 and id is 921 raw text is: RELIANCE ON ORAL PROMISES: STATUTE OF
FRAUDS AND PROMISSORY ESTOPPEL
David G. Epstein,* Ryan D. Starbird,** and Joshua C. Vincent
I.   PROMISSORY ESTOPPEL ...................................................................... 915
A.   Elements of Promissory Estoppel ................................................. 915
B.   Origin of the Term Promissory Estoppel ...................................... 916
C. Restatement of Contracts' Concept of Promissory
E stopp  el ........................................................................................ 9 16
D. Restatement  90 Not Restatement of the Law of Reported
Cases   a  the  Tim e ........................................................................... 919
1.   Simply a Defensive Doctrine .................................................. 921
2.   Not a Real Contract ............................................................... 924
E.   Restatement  90 Becoming the Law ............................................ 926
II. STATUTE OF FRAUDS ........................................................................... 927
A .  B asics  ............................................................................................ 927
B. Part Performance Exception ........................................................ 930
C. Oral Promises to Put an Oral Agreement in Writing and
Estoppel to Plead the Statute of Frauds ....................................... 933
III. STATUTE OF FRAUDS AND PROMISSORY ESTOPPEL AND
RESTATEMENT SECOND  139 ............................................................. 935
A.   Statute of Frauds and Promissory Estoppel ................................. 935
1. Reliance on a Promise to Execute a Writing and
Promissory Estoppel .............................................................. 935
2. Reliance on the Promise within the Statute of Frauds and
Promissory Estoppel .............................................................. 935
B.   Statute of Frauds and Restatement (Second)  139 ...................... 937
IV .  C ON CLU  SION  ....................................................................................... 941
Reliance on oral promises is the basis not only for law school
hypotheticals but also for real world litigation. Consider the following
hypothetical based on the 1970 Supreme Court of Hawaii decision in McIntosh
* Professor of Law, Dedman School of Law, Southern Methodist University, counsel Haynes and
Boone. After August 1, I will be teaching at the University of Richmond Law School where I hope to have
students as able and hard-working as Ryan and Josh. I am listed as the first author because, as is my custom, I
have chosen co-authors whose names begin with letters that come after E in the alphabet. Readers,
particularly readers looking to hire a new lawyer to start in the fall of 2011, should understand that Ryan's
name and Josh's name belong right up there with mine as co-authors. They did more and better work on this
Article than I did on some books that I have been listed as co-authoring.
*   Second year law student, Dedman School of Law, Southern Methodist University.
*** Second year law student, Dedman School of Law, Southern Methodist University.

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