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0px; text-align: justify; font: 12.0px Cambria; color: #000000; -webkit-text-stroke: #000000} span.s1 {font-kerning: none} span.Apple-tab-span {white-space:pre} Estoppels, while having a common name, have many differences. Promissory and proprietary estoppels seem to be quite similar, except for the fact that one is based on property while the other is based on promises. However, with the addition of contractual estoppels there seems to be no logical nexus between the three of them.

On a closer inspection of the three, one can begin to see small similarities as well as a multitude of differences. While it would be comforting to be able to label all the estoppels under one principle, it is arguable that the principle that would be used would be too general to be of any help. Not only that, but the intrinsic differences of each estoppel can be what make them integral to the law and a way for the court to help people reach legal solutions.Similarities among the estoppels One element that is in all three types of estoppel is the element of reliance. Denning J held promissory estoppel to be “a promise intended to be binding, intended to be acted on, and in fact acted on, is binding as far as its terms properly apply.

” A key element in promissory estoppel is the fact that the promise was acted on, or else the court would only be enforcing a statement that no one acted on. In Dillwyn v Llewellyn 1862 EWHC Ch J67, a case relating to proprietary estoppel, the son was held to have rights to the house on his father’s land, even though there was no formal conveyance because he had relied on his father’s promise and acted on his reliance of that promise to improve the land. The importance of reliance in proprietary estoppel is also seen in Thorner v Major when Lord Walker identified one of the three principal ingredients of the estoppel to be “reliance on that representation or assurance by the claimant.” The argument for reliance in contractual estoppel is less steady than those of promissory estoppel and proprietary estoppel. Even though contractual estoppel is based on an agreement between parties on ‘no reliance’ and ‘no representation’ clauses and can dispute the fact that reliance on representation can happen, there is still an argument for reliance. In Springwell Navigation Corporation v JP Morgan Chase Bank, the Court of Appeal made an exception to the contractual estoppel if the situation “contradicts some other specific or more general rule of English public policy.

” One such public policy contradiction is section 3 of the Misrepresentation Act of 1967 for England, or section 4 of the Misrepresentation Ordinance (Cap 284) which states that provisions excluding liability for misrepresentation “shall be of no effect except in so far as it satisfies the requirement of reasonableness as stated in section 3(1) of the Control of Exemption Clauses Ordinance (Cap. 71).” Requirement of reasonableness is then “satisfied only if the court or arbitrator determines that the term was fair and reasonable one to be included having regard to the circumstance which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.” This means that the court cannot rewrite history and decide that there was no reliance when in fact there was, because that would not pass the requirement of reasonableness. Just as in promissory estoppel and proprietary estoppel, reliance plays a key part in contractual estoppel because it shapes the nature of the agreement between the parties. Another similarity between promissory, proprietary, and contractual estoppel is that they all provide equitable remedies.

Equitable estoppels were constructed to “…mitigate the rigors of strict law…it prevents a person from insisting on his strict legal rights…when it would be inequitable for him to do so having regards to the dealing which has taken place between the parties.” For both promissory and proprietary estoppel, the connection to equity is straightforward. In both cases, even if consideration was not given, a promise may still be enforced if the promisee has acted in detrimental reliance to it and it must be “unjust or inequitable to allow the issuance to be disregarded.” These are elements of an equitable estoppel. For contractual estoppel, the tie to it being an equitable estoppel is less straightforward. The argument for contractual estoppel being an equitable one is that when seeking to enforce a basis clause, the remedy that one is seeking is of specific performance. Specific performance is an equitable remedy, therefore contractual estoppel also provides an equitable remedy.

It can also be argued that all three estoppels can be used as a sword as well as a shield. While promissory estoppel has traditionally been held to be only a shield and not a sword, recent cases seem to show a shift in the courts. In the case Walton Stores (Interstate) Ltd v Maher 1987 164 CLR 387, the courts have allowed estoppel to be used as a sword. Proprietary estoppel can also act as a cause of action, “the promisee is not merely entitled to raise the estoppel as a defense to an action of trespass r to a claim for possession: the court can make an order for the land to be conveyed to him, or for compensation, or of such other remedy as appropriate.” Contractual estoppel states that if there is a binding agreement between parties which contain basis clauses, it will prevent a party from “asserting litigation” that the opposite was true. This means that contractual estoppel can be used as a sword from preventing a party from trying to say that something was not true and as a shield if one party tries to deny something was agreed on in the initial creation of the contract.Variations among the estoppels There are many elements of the three estoppels that vary with one another.

Each estoppel is based on a different subject matter. Promissory estoppel is based on the fact that a “…clear and unequivocal promise…which was intended to affect legal relations between the parties and that clearly demonstrated that the promisor was giving up his strict legal rights against the promisee.” In proprietary estoppel, “.the subject-matter of the promise has always been (or at least included) land.

” Contractual estoppel entirely depends on the validity of the contract. Because the issue in dispute is the basis clause, there is no need for “some other mechanism” such as a representation or a promise that is needed for promissory and proprietary estoppel. Contractual estoppel is an estoppel based on whether or not a basis clause is valid while promissory and proprietary estoppel are based on previously made promises. Proprietary estoppel and contractual estoppel are also very specific in the fields that they are use in (proprietary being property disputes, and contractual being financial disputes (so far)) while promissory estoppel can be enacted in any situation where someone has relied on a promise.

Another element that is different between the three are the steps to determining whether the situation has given rise to the estoppel. Promissory estoppel requires that a clear and unequivocal promise be made, which then causes the promisee to alter his position, and that it would be inequitable for the promisor to go back on his promise. Proprietary estoppel’s ingredients are defined by Lord Walker as: “(i) a representation or assurance made to the claimant relating to the acquisition by the claimant of an interest in property, typically an interest in land, (ii) reliance on that representation or assurance by the claimant; and (iii) detriment to the claimant in consequence of his (reasonable) reliance on that representation or assurance.” Contractual estoppel requires that there to be a valid binding contract between parties that acknowledge a state of affairs (i.

e. no representation was made) that does not conflict with public policy. Promissory estoppel requires there to be a precise promise with no need of consideration, while proprietary estoppel can arise when there was no promise made, it only requires a misunderstanding of property, and contractual estoppel rises when a binding contract has already been created.   The scopes of the estoppels also vary. Proprietary estoppel requires the promisee to act to his detriment, while promissory estoppel does not necessarily require the element of detriment. For promissory estoppel, “it is enough if the promisee has altered his position in reliance eon the promise so that it would be inequitable to allow the promisor to act inconsistency with it.

” As mentioned before, contractual estoppel is a matter concerning actual clauses already constructed in the contract, therefore detriment and altering of position does not matter. The things that will affect the scope of the contractual estoppel are the legitimacy of the contract, the binding clauses and public policy. Each estoppel also has different effects. Promissory estoppel is generally suspensory due to its equitable nature, and how it would not be equitable if there was a total extinguishing of the representer’s rights. Proprietary estoppel’s effects are more flexible than promissory and depends on the promise made and the proportionality of to the detriment suffered by the claimant. If the promise was to transfer land in exchange for specific acts, then the court may enforce that promise if the act has already been done. However, if the promise is less clear with indeterminate benefit, then the court may not enforce full expectations which the promise formed.

It is clear that in granting remedies for proprietary estoppel, the court has more flexibility, which include giving land to the promisee and extinguishing the promisor’s rights to the land. This is in contrast with promissory estoppel, that can generally only provide suspensory remedies that do not completely extinguish the representer’s rights. Contractual estoppel’s effect is to prevent a party of a contract from “asserting in litigation” that the opposite of what was agreed to in the contract was true.

Is there a general principle underlying the estoppels? There is a possible principle underlying the three estoppels. It is that these estoppels prevent the party from denying the state of affairs is different from what is actually warrant. The estoppels are all a way to enforce a promise of certain agreed upon terms instead of another set of terms that one party alleges actually happened. Promissory estoppel prevents a party from going back on their word when there are signs of a clear promise and reliance of that promise.

Proprietary estoppel prevents a party from denying that they had made a representation relating to property when the other party has acted in detrimental reliance of that representation. Contractual estoppel prevents a party from denying that the terms in the contract were not what they had agreed to if there are no representation and no reliance clauses. However, one can argue that the principle set forth is the principle for everything related to contract. Because in the most basic sense, the use of a contract is to show that both parties have agreed to a set of information, therefore all disputes and solutions will have to do with information and preventing people from denying that something different happened.

In all estoppels there is an inherent quality that it is unconscionable for the promisor to go back on his or her word. Due to estoppels ties to equity and its equitable remedies, it can be argued that all estoppels are based on the general principle that it would be inequitable and too detrimental to one party if the other party is not estopped. Again, this rule is too general, and can be applied to many other areas of the law that do not have to do with estoppels.

Should there be a general principle? It would be much easier if there were a way of classifying estoppels under one idea. However, the estoppels are hard to unify due to distinctions based on authority and the difficulty of deciding which rule should apply to all estoppels. An estoppel rule that is put in place by authority is not one that can easily be changed to fit other types of estoppel. One such rule is that rule that promissory estoppel “…may be used as a shield and not a sword.” To change such a rule would be to undermine all the cases that have been ruled since Combe v Combe. Changing such a deep-rooted rule would also challenge the predictability aspect of the law.

Even though people would think it fair to allow promissory estoppel to be used as a sword to enforce a promise, it would also require a change to the law. Such change should not be taken lightly, because even though it shows flexibility and equality, it also makes the law less predictable. If the court were to feel the need to change different authorities over different types of estoppel, then many lawyers or people may view that the court is too temperamental in changing the law to whatever they feel like. This would then lower the courts’ credibility and reliability in the eyes of the public.  Also, to change an authority would require a lot of care and judgement, so to change authorities on different estoppel would require time and consideration.  Another issue is that if the rules of estoppel were to be unified, which rule would it be? Estoppels by representation “is a rule of evidence that has the effect of permanently preventing a representer from asserting or proving fact that are contrary to his own representation.” This can be applied to promissory estoppel as a basis by saying that the promise used is a ‘fact’ that caused the promisee to act detrimentally. For proprietary estoppel it can be argued that the representation made by the promisor about the land was also a fact.

However, this has been refuted by Millet LJ in First National Bank v Thompson 1996 Ch 231 when he said that estoppel by representation as a basis for all estoppels “has never won general acceptance and has been repudiated by academic water and is unsupported by authority.” To use promissory estoppel as a basis for the general principle would also be a bad idea due to its inability to act as a sword. That would mean that if promissory estoppel was decided to be a basis, then other estoppels such as proprietary estoppel may not be able to be used as cause of action, which would have a negative affect on how people can use the law to get an equitable solution.  Any general principle would have to be an extremely general one, such as the one previously stated (the prevention of a party denying the information that was acted upon/agreed upon). This would not be of much use to the law because a statement that general will have no real affect in any legal sense.

  Aside from the fact that it is difficult to draw a general principle from the estoppels, it may also be a good thing that there are differences between the estoppels. One positive argument for the separation of estoppels is that it provides the court flexibility so that they are not bound by one single precedent for all estoppels. As stated by Mance LJ, “I accept that estoppel is a flexible doctrine.and that one should avoid ‘rigid classification of equitable estoppel into exclusive and defined categories…the doctrine’s very flexibility allows it to take different shapes to fit the context of different fields.

” Trying to use one estoppel rule as a general principle for all estoppel might also create what Treitel calls “cross infection and even cross-sterilization”. One example would be to require detrimental reliance for all estoppels, which would sterilize contractual estoppel, due to the fact that it does not matter if there is reliance in contractual estoppel or not. Conclusion While there are many similarities between the three estoppels, there are also many differences, some of them hard to reconcile into one clean group. Even though there is a general desire to put the estoppels into one neat box under one general principle, to do so would require the bending of some estoppels, which may possible lead it to break, or to create a principle so general that if of no use to anyone.

One solution to fix the lack of general issues is to slowly get rid of parts of various estoppels that make them different from the group but not integral to the actual estoppel. One example would be to allow promissory estoppel to be used as a sword. This has already happened in Australia in the case of Walton Stores (Interstate) Ltd v Maher 1988 HCA 7, and if other common law jurisdictions follow it will take estoppels one step closer to having a similar structure and function.


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