264 the enforceabilit y of promises

ireland

It is necessary to look at the two promises separately, as they would be classified in a different manner under Irish law. The promise by Contractor would be classified as a variation of the agreement made wholly for the benefit of one party, Realty. Under Irish law such a variation requires consideration and in the present case Realty has provided no consideration and the promise by Contractor is not binding.25

The promise by Realty that Contractor would be paid without seeking an architect’s certificate would be classified under Irish law not as a variation, but as a waiver or forbearance. Under this doctrine a promise by a party to relinquish some or all of his rights under a contract may amount to a waiver of those rights. If, by words or conduct, a party has agreed or led the other party to believe that he will accept performance of an agreement in a different manner from that provided in the contract, he will not be able to refuse that performance when tendered. A waiver is distinguishable from a variation of a contract in that there is no consideration for the forbearance moving from the party to whom it is given.26 The party granting the forbearance may, however, be entitled upon reasonable notice to require the other party to comply with the original mode of performance, unless in the mean time circumstances have so changed as to render it impossible or inequitable so to do. In the present case, therefore, Realty’s promise may be binding, but this will depend upon the circumstances which arise following the waiver. This will be dealt with further below.

Whether it matters that Realty has acted to its detriment in advertising the glareproof windows depends on the possible application of the doctrine of promissory estoppel, the conditions for which were set out in discussing Case 1. Once again, a limiting condition is that the promisee cannot use the doctrine as a sword as well as a shield, to confer a cause of action where none existed before. Therefore in the present case Realty’s actions in advertising the glareproof windows would give rise to no cause of action on its behalf.

It would matter if Contractor had already covered over portions of the building the architect would have needed to inspect, before Realty threatened not to keep its promise regarding payment without an architect’s certificate. As described above, a party may waive a term of the contract regarding the mode of performance and he may be bound by such a waiver. He may be entitled, upon reasonable notice, to require the other