estoppel is not an appropriate affirmative cause of action and cannot be used for affirmative relief the trial court in on the determined that that case was not that that cause of action was not buyable for plaintiff this is in spite of this court's ruling in the quick construction of vs a united airlines case which specifically recognized are the cause of action for promissory estoppel on the the wit vs fleming case was published it will sixth two thousand and five meanwhile on may twenty fourth two thousand and  five the first district appellate court promulgated and published this decision chatham surgical ltd vs health care services corporation that specifically recognized and authorized a cause of action under a theory of promissory estoppel so we have a direct conflict between the district courts in determining what the law should be which is what this court will do  court can look at precedence reason rule of law and situation sense where public policy in this case public part precedence is the most important we haven't made that decision you lose well then i think the court will decide so we're going to decide this on the basis of whole cloth and then you go into should we set forth a appropriate rule of law that the proper cause of action the state of illinois in that way so sol held can we decide the issue here based on the record that we have as to whether a valid claim or promise reliance in that we continued to sell co the products that we did want the service for promoting our products and that was detrimental reliance because we have not been paid for the warranty service that we hopkins observed that in recent years the courts have expanded the use of the doctrine to enforce promises underlying otherwise defective contracts and promises made during the course of twenty negotiations he also found that in some cases a battery has been employed of write a remedy for reliance upon offers subsequently withdrawn then he goes through a number of cases and many of those cases are quite similar people promises actually made companies buy by oh i'm sorry i was actually made by jake jacobson made on behalf of fact but certainly i think it was reasonable he said at the time for this jacobson the dealer rep was on the premises they did an inventory the imagery was for the purpose of transferring this a quick in and dealership agreement in that document says by its own terms that that is affective thirty days from the date of signing it even after thirty days jacobson continued to send customers to contract or continued to ask found that the allegedly fraudulent statements occurred after the asset purchase agreement between ben daley and newton was signed yes and the contract between vandalia newton specifically said a contract between us will be completed only upon execution of the aforementioned agreement between the boat and the undersigned you understand being nude that's correct ok so i believe we're going to hear that newton hasn't suffered any detriment as a result of the claim to right reliance because newton had the option of recently in the us is purses agreement with and then that argument is stronger if jacobson on the twenty fifth of july says you're not getting it forget it i'm going to take my keyboard equipment off your lot and be done with it but he hasn't get into there's now this so i think the argument might have been valid if you would have pulled the rug out from under him on the twenty fifth of july when he had the surrender of the prior dealership i don't think the argument flies when you continue to consistent with your promise for sixty days out so i heard you almost say the word i'm sorry i think you almost had to work out if i did i don't think i meant to that would be that you don't maintain that any at any point during these negotiations the contract little while later he changes his mind calls up the representative citibank and a representative says will cancel an existing wire it didn't happen the appellate court i believe of the first district that case held that was sufficient promise to support a intercontinental real estate on in that case the promise was that a residential subdivision would be developed in the derby metals would be used as a source of water and sanitary sewer  that the employee would not be fired without good cause and not unless three warning policy of the employee handbook was followed we believe these are similar types of promises  only supreme court i consider a privilege and appreciate your attention virtually the only issue that was addressed in any way in the petition for leave to appeal is whether this court should affirm the decision of the fifth district in multiple cases that promissory estoppel is not available as a plaintiff's claim for relief the defendants in this case admit that the fifth district position is consistent with sound public policy and indeed it should be affirmed by the court the defendant's also contend that aside from the issue of whether promissory estoppel should be recognized as a plaintiff's claim for a leaf the court should bear in mind that the circuit court has already entered summary judgment on the grounds that there's insufficient proof or evidence of reasonable reliance and there is insufficient proof or evidence of damages the circuit court did that in entering summary judgment on count two the common law fraud claim those same elements would be necessary elements under the promissory estoppel claim therefore one way or the other defend that summary judgment was properly entered in this case the entry of summary judgment on count two was not effectively appealed it was never addressed in the fifth district briefing it isn't addressed in the briefing for this case under supreme court rule three forty one any issues about the circuit court's entry of summary judgment on common law fraud had been waived the district has held that promis is not a promise for a stop was not available as a plaintiff's claim in three consecutive cases dating back to two thousand and three the fifth district position on that issue as not been addressed it hasn't been criticized it hasn't been rejected by any other division of the only peleg court and also has not yet been addressed until today by this court so also significant that over the past five years the illinois general assembly is not undertaken any action to review that position or to create a statutory cause of action promissory est up on section two six fifteen motion to dismiss ruling the fifth district read that opinion and i read it also as not addressing the issue there is no argument by the defendant in that case that in fact estoppel should not apply there was no public policy argument presented about why it would be inappropriate to recognize promissory estoppel in a in a context of  ery contractual negotiations the issue that this court ruled on in quake construction was simply were there sufficient facts stated to meet the elements of the claim it was assumed because there is no argument to the contrary that a claim could be stated in quake construction but this court never never addressed because it wasn't presented with the issue whether that was correct or not and the fifth district read quite construction in that way therefore the fifth district said great construction isn't controlling the supreme court wasn't trying to answer the issue was is should promissory estoppel be available in the context preliminary contractual negotiations construction is distinguishable from our case for other reasons quick construction involved a detailed letter of intent that actually set forth all of the elements of the contract it was in the context of a bid and the letter of intent included all of the terms for price for scope of work for it set forth everything that subcontractor would do the ambiguity that the supreme court addressed was did the parties intend to be bound by the letter of intent which was sufficient to be a contract or did the parties intend it to actually not be bound until there was an executed formal contract so i don't believe the quake construction reaches the issue that's presented to the court today this little bit is it your position going back to the common law of fraud my position would be that what the fifth district would have done and in fact what this court should do is decide the legal issue of whether promissory estoppel is available and if it disagrees with the public policy arguments that i hope to get to and rules that yes the plaintiff can frame up a promissory estoppel cause of action nonetheless summary judgment would have been affirmed in the appellate court and should be affirmed here there is a full record that the circuit court reviewed the circuit court made a ruling that or there was no reasonable reliance and no evidence of damages and my question goes pacifically to the fact that i don't think you have a disagreement with counsel that if we got to that point that this court could certainly rule as to whether there was a valid cause of action for promissory estoppel would this court even have to look at the facts in the record with respect to that or would it be your position since the  make clear in our brief senate is a position that the defendants maintain yes but there is no need for every man and for that reason as far as it to finish up on prior exactly roger you're you're anticipating my next point which was your concurrence which was certainly well reasoned and reviewed the historical development of the theory  ultimately centered on the fact that you would not apply promissory estoppel in the event that you found that there was an enforceable contract and that i think is consistent with the argument that i make about why it would be inappropriate to  don't i'm not aware of any prior case from this court that clearly said promissory estoppel should be applied in the context of assertions made in preliminary contractual negotiations why do i argue that that's inappropriate my argument is that formality is an extremely important aspect of contract law particularly between businesses contract formation and contract enforcement principles promote clarity and certainty between parties in only two of limited circumstances the first limited circumstance which is consistent with the fifth district's ruling is promissory estoppel can be raised as an affirmative defense when someone promises to withhold a known right like charging interest on a debt or requiring a tenant to issue a written notice that they don't intend to renew a lease the other party can say don't worry about that i promise not to hold you to a claim based on promissory estoppel my argument would be that the only limited circumstances in which this court should recognize up such a claim would be three circumstances that your honor noted in your concurrence  just promises when someone promises to make a donation to a charity and the charity acts in reliance on that charitable subscriptions he and certain types of interest family promises  recognized cause of action and that's a different context than the three fifth district cases including this case before the court none of those cases involved parties who were negotiating over an extended commercial relationship and that's the the contract that's the contract negotiation setting that this case arises to the court  in under the facts of record imputing contractual stature to the comment they will get the dealership or they will get the kubota dealership in effect creates a unilateral obligation on the and without any type of contractual protections from at the same time the other party the the dealer applicant would have no type of enforceable obligation at all took a boat  recognize promissory estoppel in this situation also creates uncertainty based on certainty regarding the rights of the contracting parties and it creates uncertainty part of third parties for example was the assert promise sufficiently clear was it not was there any claimed reliance that was reasonable under all the circumstances or was it not what was new contract or sales authorized to do and what was it not this type of uncertainty should not be promoted or encouraged by the law it should be discouraged contract law should promote certainty by rewarding parties for entering into definite specific written contracts but fully spell out each party's rights an obligation is to the other that's the reason why i submit the fifth district was correct at least in the context of these  comments made in the early stages of contractual negotiations and if that reasoning is consistent with later cases that say in a similar vein those types of comments are not specific unambiguous promises they are statements of predictions mr jacobson did not have the authority to buying a boat even even the principles of the have any authority and in fact in the very same meeting where this alleged comment was made alleged comment being they will get the dealership mr emerick was on the other side testified well clearly cannot find the existence of a clear and unambiguous promise jumping ahead a little bit but it does kind of dovetail with my policy argument that being that the the fifth district is correct estoppel as a matter of public policy shouldn't apply in this context there's an argument made in new contract or sales brief that you need that the court needs to recognize promissory est as a weapon to prevent fraud and in justice well with all due respect the law already has a cause of action that serves capably to prevent fraud and in justice it's the common law fraud cla fully recognized and beyond dispute why do we need another claim to address instances of fraud and justice in ts try to assert a common law fraud claim before the circuit court the circuit court granted summary judgment on the merits of that claim that ruling was an appeal to the general assembly has decided in some circumstances to expand claims in the fraud area for example the consumer fraud act general simply decided that additional rights and remedies should be created as a matter of statute that is certainly within the province of the illinois general assembly to determine as a matter of public policy the general assembly is the primary source that this court looks to in determining the state's public policy the general assembly has not to date taken any action to try to create a statutory cause of action for promissory est and i submit that that for that reason the the decision of the fifth district on public policy grounds should be affirmed i've addressed somewhat the the waiver  issue i hope i've answered justice thomas question in the briefs i also point out if you get beyond the waiver issue there are a number of good arguments about why there was no actual reliance as a circuit court found it is true that the dealer had already entered into the asset purchase agreement two weeks before this alleged comment was made there was no reliance in buying the dealership for two hundred thousand dollars there's an argument that the selling dealer relied on the alleged comment in signing a terminations document that's not consistent with the record his testimony at the deposition was he didn't believe mr jacobson and moreover the full record shows that he really had no other choice he already sold the dealership and the dealer arrangement between the former dealer  transfers so it wasn't like somehow if if mr emberg had said i'm not going to sign that terminations agreement you take that terminations agreement and do what you want with it the plaintiff would not have been any better off it still would not be a  specifically said in the event that you attempt a transfer that's grounds for termination anyway so one way or the other that entail your term dealership was going to terminate and mr rimmer x reliance really was not material moreover he didn't need any approval from the new contract or sales folks to do that the ryans whether they said signed the document or not had no bearing at all they didn't have any contract or contractual right to grant approval or otherwise there's one other point i wanted to make about the asset purchase agreement that asset purchase agreement was not contingent on composers approval if you read the cites to the record it was specifically contingent on the approval of a different o that's because new holland owned eighty percent of the plaintiff's company until the plaintiff bought it out for five hundred seventy five thousand dollars so new holland had to approve not and in fact the bota didn't even know that the asset purchase agreement was entered into until this meeting in addition mr jacobson wasn't there to to transfer inventory to the new dealer he was simply doing an inventory audit because this was a floor plan we had a security interest in all of those tractors so this wasn't a plan to transfer tractors over vandalia tractor was still our dealer at that time and finally and i quit the record i don't think will show that mr jacobson directed any work to to the plaintiff what happened was people would come in and would it wanted work done people would come in and maybe ask to the affirmative cause of action we picked the best one of the ones that have been pled to trial court framed the issue and brought it before the appellate court the one thing is this warranty work we've never been paid for the warranty work i think that's about forty eight thousand dollars i forget the exact number but what kind of better action on the lines can you have to go out and do work nor do you work this to be paid for by come boda we do it because we're the dealer or we're told we're going to be the dealer and then we don't get paid for this damages this action or alliance that's reasonable want reliance so i think it's up to the trier of fact to determine was that reliance reasonable was or damages and if so how much and did we do we have facts