R2d § 139
Enforcement by Virtue of Action in Reliance
(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires. (2) In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are significant: (a) the availability and adequacy of other remedies, particularly cancellation and restitution; (b) the definite and substantial character of the action or forbearance in relation to the remedy sought; (c) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence; (d) the reasonableness of the action or forbearance; (e) the extent to which the action or forbearance was foreseeable by the promisor.
Professor's notes
Elements: (1) a promise which the promisor should reasonably expect to induce action or forbearance is enforceable notwithstanding the SoF if injustice can be avoided only by enforcement; the remedy may be limited as justice requires; (2) factors include: (a) availability of other remedies, especially restitution; (b) definite and substantial character of the reliance; (c) extent to which reliance corroborates the promise; (d) reasonableness of the reliance; (e) extent to which the action was foreseeable.
McIntosh v. Murphy operationalizes § 139: quitting Hawaii job and relocating to take new role was definite and substantial reliance.
Common misunderstanding: students treat § 139 as § 90 with a SoF tag. It is more cautious. The five factors require corroboration that the promise was actually made: the SoF's anti-perjury function must be addressed. § 139 is lifnim mishurat hadin: going beyond strict din to prevent injustice while honoring the SoF's purpose.
Cases that operationalize this rule
Text
R2d § 139. Enforcement by Virtue of Action in Reliance.
(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires.
(2) In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are significant:
(a) the availability and adequacy of other remedies, particularly cancellation and restitution;
(b) the definite and substantial character of the action or forbearance in relation to the remedy sought;
(c) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence;
(d) the reasonableness of the action or forbearance;
(e) the extent to which the action or forbearance was foreseeable by the promisor.