Barbara’s promise (this would not be true if the promise was made after delivery of the car). There remains a slim possibility that the promise might be enforceable by analogy to an exception to the ‘no cause of action rule’ for representations concerning the ownership of land. An owner of land who allows another to make improvements on his or her land on the impression that the land is, or will become, the other party’s can be estopped from going back on his word.54 Some cases have extended this exception to chattels.55 Furthermore, a few of the land cases have suggested that the exception may apply also to grants of irrevocable licences to occupy.56 If these two extensions of the land exception are combined, it might be possible to raise estoppel successfully against an attempt by Barbara to regain her car.

Third, it could be argued, as Palmer himself suggests, that bailment is a sui generis relationship, and that, by analogy to those cases where a bailee’s gratuitous promise was held enforceable (see Case 5), a bailor’s gratuitous promise should similarly be enforceable. In other words, Barbara’s promise is enforceable because promises ancillary to a bailment relationship are enforceable. But, as discussed in Case 5, the status of promises by unrewarded bailees is itself unclear, so the success of this argument by analogy must be doubly uncertain. Overall, then, the conclusion must be that the status of Barbara’s promise once delivery has been made is not clear in English law. Finally, that Albert has relied on the promise would, in theory, make no difference except in the case where estoppel was argued, although in practice it is safe to assume that an English court would be more willing to enforce the promise if Albert has relied on it to his detriment.

ireland

On the facts as presented, Albert has provided no consideration for Barbara’s promise nor has the promise been made by way of a deed under seal. In these circumstances there is no enforceable contract between the parties, and Barbara would be entitled to have her car back. This example appears also to fall within the definition of a gratuitous bailment.57 In this instance, however, it is Albert, as bailee, who benefits solely from this transaction while Barbara, as bailor, does not. Where the car has not been actually acquired by Albert then Barbara is not bound by her promise as there has been no consideration provided and the goods have not been

188 the enforceabilit y of promises

bailed. The position may be different, however, where Albert actually acquires the goods.58

Where Albert is told that he could not have the car a week before Barbara was supposed to deliver, then the contract is unenforceable as there has been no consideration and the promise was not made by way of a deed under seal.59 However, where Albert is told that he could not have the car a week after she actually delivered the car, a gratuitous bailment arises.60 In Bainbridge v. Firmstone,61 it was held that a gratuitous bailment for the benefit of the bailee gave rise to a detriment to the bailor from ‘parting with the possession for even so short a time’. Treitel provides that a mere promise by the bailee to return the chattel might not suffice as consideration as it would only be a promise to perform a duty imposed by law on all bailees, but a promise to look after the chattels or to improve them in some way would probably be regarded as consideration moving from the bailee. Palmer suggests that a gratuitous bailment provides for purely tortious remedies. Whether an Irish court would find that the mere acceptance by Albert of the car could give rise to an enforceable promise remains uncertain. In this regard it could be argued that Albert’s acceptance of the car amounts to an implied promise to look after the car and thus amounts to consideration moving from him to Barbara.62

Albert might also be able to rely on the equitable principle of estoppel where he had actually acquired the car. In such instance, where Albert refuses to give her the car back and Barbara institutes proceedings for the return of her car, Albert could raise the principles of promissory estoppel in order to defeat her claim. In this regard the issue of whether Albert was told a week before or a week after she was supposed to deliver it might be relevant with regard also to the issue of detriment. As with all equitable remedies, however, all the facts are taken into account and no doubt the fact that she cancelled vacation plans after injuring her left foot would also be taken into account. Furthermore, estoppel operates as a shield and not a sword, allowing Albert to raise the issue of promissory estoppel only to defeat a claim instituted by Barbara.

If Albert took a job that requires him to have a car but does not pay enough for him to rent one, that fact does not go to the enforceability or otherwise of the contract. If there has been no consideration and the promise was not made by way of a deed under seal then the promise is unenforceable (see Case 1). As stated, it is yet uncertain whether an Irish

62 See Treitel, Contract, ch. 3.