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Irrevocability of the offer: There are a number of theories which we might advance to establish that Dole’s October 9th offer was irrevocable until December 4th. If we can succeed with any of these arguments, I think we will then be able to convince the court that Dole’s running off into the wilderness was an interference with Pinsky’s right to exercise his option, and that Pinsky should be regarded as having validly exercised the option by arriving in Webster with the check. (If the offer was irrevocable, Dole should not have the right to get around its irrevocability by making it impossible for Pinsky to accept.)

One theory is that the October 9th offer was a validly binding option contract. Restatement 2d, §87(1)(a), makes an offer irrevocable as an option contract if it “is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time.” The difficulty with this provision is that Dole’s October 9th document does not recite a purported consideration. Therefore, unless the jurisdiction in which Pinsky sues has a statute or case law analogous to the UCC “firm offer” provision, §2-205 (by which a merchant’s signed offer to sell that states that it will be kept open for a certain time is irrevocable, even without consideration), I don’t think a conventional option contract theory will work. We might conceivably be able to show that Pinsky’s act of surveying was of benefit to Dole, and bargained for by him, and was therefore consideration for the option. But since there’s a good chance that the court will find that Dole didn’t care whether Pinsky surveyed or not, and that there was therefore no consideration for the option, I think this whole “binding option” contract theory will probably go down the drain.

A more promising theory is that Dole’s offer was for a unilateral contract, and that when Pinsky began to perform the requisite act of acceptance (i.e., the tender of a check), the offer became temporarily irrevocable. See Restatement 2d, §45. To win with this theory, we would have to convince the court that from the time Pinsky got to Webster, he was engaged in the act of tendering the check (and not merely preparing to tender the check.) If we can establish this, we have a good chance of getting the court to follow Restatement §45, and Pinsky will be able to get the full expectation measure of damages.

Promissory Estoppel: If all of the above theories fail, I think we can at least let Pinsky get his $100,000 in surveyors’ fees, by use of the doctrine of promissory estoppel. Restatement 2d, §87(2) provides that “An offer which the offeror should reasonably expect to induce action or forbearance of a substantial character on the part of the offeree before acceptance and which does induce such action or forbearance is binding as an option contract to the extent necessary to avoid injustice.” This provision does not require that the offer have been supported by consideration, and seems to fit Pinsky’s situation to a “T.” Dole certainly knew that Pinsky planned to spend money on surveyors’ fees.

The reason that this promissory estoppel theory is less than completely satisfactory is that, as the Restatement puts it, enforcement will be given only “to the extent necessary to avoid injustice.” I’m afraid that the court is likely to award Pinsky only his $100,000 in fees, and not to give him the “benefit of his bargain” (i.e., the profits he could have made from Pinsky World, or even the $2.5 million profit he could have made by reselling the land to the wilderness group.) It’s possible that we can convince the court that “justice” requires giving Pinsky at least this $2.5 million turnaround profit, but I wouldn’t count on it.

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