The other day, while finishing off my coffee a donut and a couple donut holes with jimmies (look that one up) at one of the local donut shops near my office, I overheard the donut shop worker talking with a bike messenger about a bird stuck in the donut shop.
My initial thought…this sounds like a job for a tall guy, like changing light bulbs, pulling down projector screens, or reaching objects from high places, reminiscent of my high school teachers’ requests. I know makes tall people feel special.
So I inquired to ask what was going on. The worker said they were closed, while she was attempting to get the bird out from above the door, with a donut on a stick and with the bike messenger’s assistance. Yeah that’s right, a donut on end of a stick, as if the bird was only there for a snack, maybe it was. I offered to grab the distressed bird and the worker looked at me with confusion.
In attempt to sweep the bird down, it flew across the store and eventually ended up landing in an empty donut box before flying to hide behind some coffee cups. I asked the worker if I could go behind the counter to get the bird out, while she consented. Through multiple attempts and without harming the little bird, I was able to trap it using two plastic coffee cups. I took it outside, a few yards from the door, and released it. It flew away unscathed.
Here’s where it gets interesting, after thanks, the woman working the store proclaimed “free donuts for life” and told me to come in the following day, when they were re-opened. Wrong person to offer free donuts for life to, especially the good donuts (you know what I mean if you live in Chicago and appreciate donuts).
So am I to expect free donuts for life? Does the shop owe me free donuts for life? Short answer is probably not.
This promise of “free donuts for life” can be looked at through contract law (i.e. whether we have an enforceable contract), specifically under Illinois contract law. A contract requires mutual assent, by the parties to the terms of the agreement; the parties here being the donut business (assuming the worker had authority to bind the donut shop, without getting into agency law) and myself. Mutual assent requires a “meeting of the minds” and typically includes an offer and acceptance. Both parties must understand and accept the agreement they are entering into. In addition to mutual assent there must be “consideration”, which is a bargained-for promise, act, or forbearance or the creation, modification, or destruction of a legal relation.
However, past consideration is not sufficient consideration to form an agreement, and would be treated as a gratuitous promise. Which means since I had already provided the removal of the bird from the donut shop (performance and past consideration), the shop’s promise of “free donuts for life” was based on a prior conferred benefit, and not sufficient to form consideration for the promise. Had the worker stated “if you get that bird out of here, you will get free donuts for life”, or “whoever gets the bird out of here gets free donuts for life” and I performed, this would satisfy the consideration element of a contract, but not the case here.
I asked a lawyer friend to discuss and although willing to take my case for a third of the donuts, we both concluded that there was no exchange of consideration, “free donuts for life” for past performance was not enough. But he did bring up the legal doctrine of promissory estoppel, based on the gratuitous promise of the donut shop.
“The restatement of contracts defines promissory estoppel as “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”
Illinois requires the following elements to set out a claim for promissory estoppel: (1) there is a promise that is unambiguous in its terms; (2) there is reliance by the party to whom the promise is made; (3) the reliance is expected and foreseeable by the party making the promise; and (4) the party to whom the promise is made relies on the promise to his or her detriment. These are all factual questions that must be established, and will hinge on the specifics of each case.
Applying these elements to the bird rescue and “free donuts for life”, one could argue the promise was ambiguous. What does “free donuts for life” mean? A donut a day or a dozen? It’s not clear, what the shop was promising, and what the promissee (myself) may be interepreting the promise to be, and this creates ambiguity. However, a jury or judge may be able to determine what “free donuts for life” means, and give it more definite meaning.
Second, I would have had to rely on this promise, and in Illinois that reliance must be reasonable. Let’s say I did rely on this promise and showed up every day to ask for a donut and let’s assume this was reasonable, that would satisfy the second element.
The third element also requires reasonableness, and it would have to be reasonable for the donut shop worker to expect and foresee me rely on this promise; again for a judge or jury to decide.
The fourth element, detrimental reliance, may be shown through my efforts in showing up at the donut shop day after day to receive my free donut, but it would be unreasonable for me to continue to show up, if after the first day I was told I only get one free donut and cannot continue to come back for free donuts.
Let’s say I overcome these hurdles and prevail on a claim under the doctrine of promissory estoppel, what could I recover in damages? Some courts have awarded actual damages (i.e. the detriment of the reliance) others have awarded the promise, “free donuts for life,” so long as necessary for equity to prevail.
Free Donuts for Life.
*Although I am a consumer of delicious donuts, I am also a business and real estate lawyer and would be happy to speak with you and see how I can be of assistance with your start-up or small business. Christian@attorneyblume.com