NOTE

1. See Shattuck, Gratuitous Promises — A New Writ?, 35 Mich. L. Rev. 908 (1937); Seavey, Reliance on Gratuitous Promises and Other Conduct, 64 Harv. L. Rev. 913 (1951).

Could plaintiff's lawyer have avoided the risk of losing his client's case on the consideration issue by bringing a tort action? Consult Colonial Savings Assn. v. Taylor, 544 S.W.2d 116 (Tex. 1976) and Restatement of Torts Second §323 (1965).

2. In Hazlett v. First Federal Savings & Loan Ass'n, 14 Wash. 2d 124, 127 P.2d 273 (1942), the court considered the application of §90 and observed that every illustration following that section deals with a promise inducing affirmative action on the part of the promisee. "Surely, forbearance was not intended to include the mere passive failure of the promisee to procure elsewhere, or by other means, the service as the thing promised. If so it would be difficult to imagine a promise which would not be supported by some sort of 'forebearance' consideration." Id. at 131, 127 P.2d at 277. Do you agree? Is the same not true of affirmative action taken in reliance? Goetz & Scott, Enforcing Promises: An Examination of the Basis of Contract, 89 Yale L.J. 1261, 1267-1270, 1291 (1980).

3. Early cases draw a sharp distinction between misfeasance and nonfeasance in determining the liability of a gratuitous promisor. Comfort v. McCorkle, 149 Misc. 826, 268 N:Y.S. 192 (1933); Wilkinson v. Coverdale, 1 Esp. 73, 170 E.R. 284 (1793); Thorne v. Deas, 4 Johns. 84 (N.Y. 1809), discussed in Seavey, Reliance upon Gratuitous Promises and Other Conduct, 64 Harv. L. Rev. 913 (1951). See also Cardozo's opinion in Barile v. Wright, 256 N.Y. 1, noted in 26 Ill. L. Rev. 916 (1932). The Restatement of Torts Second §323 expresses no opinion as to whether nonfeasance of a gratuitous promise is sufficient to impose liability. The Restatement of Agency Second §378 does not distinguish between misfeasance and nonfeasance. The Comments to that section suggest, however, that a gratuitous agent may be liable either in tort or for breach of contract under §90. See Comments a and e.

For a case that holds a gratuitous promisor liable for nonfeasance, see Spiegel v. Metropolitan Life Ins. Co., 6 N.Y.2d 91, 188 N.Y.S.2d 486 (1959). See also the Lusk-Harbison-Jones case that follows.

4. In Dufton v. Mechanicks National Bank, 95 N.H. 299, 62 A.2d 715 (1948), noted in 62 Harv. L. Rev. 1069 (1949), the court held a promisor liable for failure to procure insurance by implying a promise on the part of the promisee to pay the premium. By implying a promise, the court created a bilateral contract and thereby avoided the problems associated with gratuitous promises.

5. The enforcement of gratuitous promises to obtain insurance has been explained on the grounds that the promisee would have attained similar insurance from someone else if the promise had not been made. "In this case, the opportunity cost of acceptance of a promisor's representations that designated property would be insured or safeguarded is equal to the entire loss if the risk materializes after the promise is broken." Goetz & Scott, Enforcing Promises: An Examination of the Basis of Contract, 89 Yale L.J. 1261, 1318 (1980). Judicial reluctance to impose liability in such cases is probably attributable to great disparity between the amount of the promisee's reliance loss and the value of the promise. Id. at 1317 n.158. Note that the Restatement of Agency Second §378 imposes a duty of care on a gratuitous agent when the gratuitous promise "causes the [promisee] to refrain from having such acts done by other available means," and the duty of care ceases if the promisor gives notice that he will not perform "while other means are available." See Seavey, Reliance Upon Gratuitous Promises or Other Conduct, 64 Harv. L. Rev. 913 (1951). If the promisee could not have paid the premium at the time the promise was made, could he still recover? See East Providence Credit Union v. Geremia, 103 R.I. 597, 239 A.2d 725 (1968) (the court relied on §90, but also found consideration for the promise).

6. Should the amount of the premium be deducted from the award to the promisee? See Eisenberg, Donative Promises, 47 U. Chi. L. Rev. 1, 30 (1979):

A final problem is the treatment of benefits received under a relied-upon donative promise. If the benefits are financial or tangible, and damages are measured by reliance, the amount of the benefits should normally be de- ducted from the recovery. For example, suppose A makes a donative promise to buy on B's behalf fire insurance covering B's goods, B accordingly forbears from insuring the goods himself, A does not buy the policy, and the goods are destroyed by fire. If the goods had been insured, the premium would have been $50 and the insurance company would have paid $2000 to make good B's loss. B's damages against A should be, not $2000, but $1950, his net proceeds had he insured the goods himself.