WPI 301.02 Promise Defined

Use this instruction with WPI 301.01 (Contract Defined) when the formation of the contract has been put at issue by the pleadings and the evidence, and the jury must decide whether a promise has been made. When the jury must decide whether a promise has been made in order to support a finding of promissory estoppel, use this instruction with WPI 301A.01 (Promissory Estoppel).

The instruction is derived from sections 2(1) and 4 of the Restatement (Second) of Contracts (1981).

In contract law, the word “promise” is a term of art. Hansen v. Virginia Mason Med. Ctr., 113 Wn.App. 199, 207, 53 P.3d 60 (2002). The definition of a promise in the first Restatement of Contracts section 2(1) (1932), has been approved by Washington courts: “A promise is an undertaking, however expressed, either that something shall happen, or that something shall not happen, in the future.” Hansen, 113 Wn.App. at 207; Meissner v. Simpson Timber Co., 69 Wn.2d 949, 957, 421 P.2d 674 (1966); Plumbing Shop, Inc. v. Pitts, 67 Wn.2d 514, 517, 408 P.2d 382 (1965).

The current edition of the Restatement provides: “A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” Restatement (Second) of Contracts § 2(1) (1981), cited in Hansen, 113 Wn.App. at 207, and Havens v. C & D Plastics, Inc., 124 Wn.2d 158, 172, 876 P.2d 435 (1994). This emphasis on the justifiable understanding of the promisee is reflected in the wording of the instruction. The Restatement (Second) of Contracts also provides: “A promise may be stated in words either oral or written, or may be inferred wholly or partly from conduct.” Restatement (Second) of Contracts § 4 (1981).

A promise is distinguished from an intention to do a thing. Meissner, 69 Wn.2d at 957; see also Pac. Cascade Corp. v. Nimmer, 25 Wn.App. 552, 608 P.2d 266 (1980). A promise, in the sense of a commitment, is also to be distinguished from a description of a future event. Hansen, 113 Wn.App. at 207; Peoples Mortg. Co. v. Vista View Builders, 6 Wn.App. 744, 496 P.2d 354 (1972).

An “illusory promise” is “a purported promise that actually promises nothing because it leaves to the speaker the choice of performance or nonperformance.” It is “neither enforceable nor sufficient consideration to support enforcement of a return promise.” Interchange Assocs. v. Interchange, Inc., 16 Wn.App. 359, 360–61, 557 P.2d 357 (1976). This includes the reservation of an absolute right to cancel a promised performance. Interchange Assocs., 16 Wn.App. at 360. Cf. Omni Grp., Inc. v. Seattle-First Nat'l Bank, 32 Wn.App. 22, 645 P.2d 727 (1982) (right to cancel on occurrence of specified condition does not render promise illusory).

A “supposed promise may be illusory because it is so indefinite that it cannot be enforced, or by reason of provisions contained in the promise which make its performance optional or entirely discretionary by the promisor.” Goodpaster v. Pfizer, Inc., 35 Wn.App. 199, 203, 665 P.2d 414 (1983). Similarly, an agreement to negotiate a contract in the future “is nothing more than negotiations.” Wharf Rest., Inc. v. Port of Seattle, 24 Wn.App. 601, 608, 605 P.2d 334 (1979). “Agreements to agree are unenforceable in Washington.” P.E. Sys., LLC v. CPI Corp., 176 Wn.2d 198, 208, 289 P.3d 638 (2012).

Washington courts have analyzed contracts in which a promise is manifested by conduct as “implied contracts,” or as contracts or contract terms “implied in fact.” See Johnson v. Whitman, 1 Wn.App. 540, 463 P.2d 207 (1969) (distinguishing quasi contract, “implied in law,” which is based on implied legal duties or obligations):

Johnson, 1 Wn.App. at 544–45 (quoting Ross v. Raymer, 32 Wn.2d 128, 137, 201 P.2d 129 (1948)); see also Pierce Cnty. v. State, 144 Wn.App. 783, 185 P.3d 594 (2008); see WPI 301A.02 (Quasi Contract).

The existence of an implied contract is a question for the trier of fact. Lokan & Assocs., Inc. v. Am. Beef Processing, LLC, 177 Wn.App. 490, 311 P.3d 1285 (2013); Weiss v. Lonnquist, 153 Wn.App. 502, 224 P.3d 787 (2009) (trial court properly inferred existence of subsequent employment contract); see also Kilthau v. Covelli, 17 Wn.App. 460, 462, 563 P.2d 1305 (1977). The courts also note, however, that “the types of contract, express and implied, simply differ in the mode of proof and not in terms of their legal consequences.” Plumbing Shop, 67 Wn.2d at 517 n.1; Eaton v. Engelcke Mfg., Inc., 37 Wn.App. 677, 680, 681 P.2d 1312 (1984). Therefore, the instruction does not introduce the term “implied contract” to the jury.