Remedies for Imperfect Transactions in Contracts and Torts

The papers by Professors DeLong, Wonnell, and Kelly in this Symposium address different types of imperfect transactions. Promises that are the subject of section 90 of the Restatement (Second) of Contracts are imperfect in the sense that they lack consideration or are disclaimed in subsequent, formalized, written contracts.' Section 90 authorizes courts to find remedies for reasonable but fruitless expenditures induced by parties who make promises on which they should reasonably expect others to rely.2 Professor DeLong decries courts' formalist strategies for enforcing disclaimers that eliminate these promisors' potential liability for intentionally imperfect transactions.' Taking Professor DeLong's analysis of imperfect promises one step further sheds light on his critique of formalist analysis of disclaimers. I will hypothesize a rationale for disclaimers and alternative methods for limiting their application that might be appealing to both Professor DeLong and the formalist courts.