Representation and promise

2.01 The boundary between estoppel by representation and contract is marked by the foundational distinction between representation and promise. In traditional analysis, a representation is a statement of past or present fact and a promise is a statement of future action.1 A representation (but not promise) may raise an estoppel2 if it is made to induce, and does induce, detrimental reliance;3 a promise (but not representation) may found a cause of action for breach of contract if so intended and supported by consideration.4 The distinction reflects the policy of the law that although one ought not to mislead another about the past or the present, an expression of expectation or intention as to the future is not actionable except as promise by contract.5 Following a late 19th-century change of policy on liability for deceit which dramatically restricted recoverability of damages for misrepresentation, the law of contract was shaped by attempts to rely on statements of fact as contractual promises by which the truth of the statement would be contractually “warranted” so that liability for the untruth would sound in contractual damages. This generated a difficult distinction between a non-contractual “mere” representation of fact and contractual warranty.6