Estoppel (English law)
Encyclopedia
Estoppel in English law is a doctrine
that may be used in certain situations to prevent a person from relying upon certain right
s, or upon a set of facts (e.g. words said or actions performed) which is different from an earlier set of facts.
Estoppel could arise in a situation where a creditor
informs a debtor
that a debt
is forgiven, but then later insists upon repayment. In a case such as this, the creditor may be estopped from relying on their legal right to repayment, as the creditor has represented that he no longer treats the debt as extant. A landlord may tell his tenant that he is not required to pay rent for a period of time ("you don't need to pay rent until the war is over"). After the war is over, the landlord would be "estopped" from claiming rents during the war period. Estoppel is often important in insurance
law, where some actions by the insurer or the agent estop the insurer from denying a claim.
The requirement of inducement and reliance are broadly the same for all reliance-based estoppels:
Estoppel by representation of fact and promissory estoppel are mutually exclusive: the former is based on representation of existing fact (or of mixed fact and law), while the latter is based on a promise not to enforce some pre-existing right (i.e., an intention as to the future). Proprietary estoppel can operate only between parties who, at the time of representation, were in a pre-existing relationship, while this is not a pre-requisite under estoppel by representation of fact.
English courts will consider unconscionability taking into account many factors, including the behaviour, state of mind, and circumstances of the parties. Generally, the following eight factors are determinative (Michael Spence, Protecting Reliance: The Emergent Doctrine of Equitable Estoppel, Oxford: 1999, pp60–66):
In The Law relating to Estoppel by Representation, 4th edition, 2004 at para I.2.2, Spencer Bower defines estoppel by representation of fact as follows:
A second definition can be found at Wilken and Villiers, The Law of Waiver, Variation and Estoppel, 2nd ed, Oxford: 2003, at para 9.02:
A representation can be made by statement or conduct. Although the representation must be clear and unambiguous, a representation can be inferred from silence where there is a duty to speak or from negligence where a duty of care arises. Under English law, estoppel by representation of fact is not a cause of action, though it may be a defence or acts in support of a cause of action. There is some debate whether under English law courts will take into account unconscionability under estoppel by representation of fact, although Australian courts clearly do.
that B will expend money or otherwise act to his detriment in reliance of the supposed or promised gift, so much so that it would be "unconscionable" not to enforce the expectation Taylor Fashions v Liverpool Victoria Trustees.
For example, in Dillwyn v Llwellyn in Chancery a father promised a property to his son, who took possession, expended a large sum of money on the house and otherwise improved the property. The father never actually gifted the property to the son. After his death the son, claiming to be the equitable owner, obtained a court judgment forcing the trustees to convey the land to him.
Similarly in Inwards v Baker [1965] 2 QB 29, a father encouraged his son to build a house on his own land, promising to leave that land to the son in his will. Subsequently, the son built a house and lived there for some 30 years. No transfer of land was made in the father's will when he died. It was held that despite this the personal representatives of the father were estopped from evicting the son.
While the courts will generally uphold the expectations of parties, if the parties are themselves not clear about their expectations the court's starting point will be the detriment incurred by the parties (per Robert Walker LJ Jennings v Rice
). Proprietary estoppel claims, therefore do not necessarily result in the transfer of the property to the claimant; in Jennings v Rice
itself, there was a monetary award.
In June 2008 the House of Lords re-visited the doctrine of proprietary estoppel, and in the process was quite fierce in describing its limits. In that light, it must be very doubtful that Mr Jennings would have got the result he did: properly understood, Jennings v Rice is a bit of a muddle, probably concerning promissory estoppel, with a bit of quantum meruit thrown in for good measure.
In Yeomans Row Management Ltd v Cobbe the House overturned the decision of a fairly heavy-weight Court of Appeal on the very issue of estoppel, thereby illustrating the level of confusion about the meaning of the doctrine. Lord Scott of Foscote, with whom the other Lords agreed, described at length that someone who seeks to rely on proprietary estoppel must establish an actual or certain interest in the property to which he claimed a right. Without that, he is not off the starting blocks.
In particular he remarked that the following rationes of Deane J in Muschinski v Dodds "repay careful reading" (his Lordship said they applied to proprietary estoppel as they do to constructive trusts):
Lord Scott added,
He then found that that was exactly what the Court of Appeal, no less, had done. Once the proprietary right is established, then and only then will the court consider the conduct of the party seeking to deny the right and if that conduct is wanting, will estop him from denying the right. The court should not begin with an examination of a party's behaviour.
that prevents a party from acting in a certain way because the first party promised not to, and the second party relied on that promise and acted upon it. In English law, a promise made without consideration
is generally not enforceable, and is known as a gratuitous promise. For example, a car salesman promises not to sell a car over the weekend, but does so, the promise cannot be enforced. If however, the car salesman accepts one penny in consideration for the promise, the promise is binding and enforceable in court. Estoppel is one of the exceptions to this rule.
The doctrine of Promissory Estoppel was first developed in Hughes v Metropolitan Railway Co but was lost for some time until it was resurrected by Lord Denning in the leading case of Central London Property Trust Ltd v High Trees House Ltd.
In this case, the claimants let a block of flats to the defendants at an annual rent of £2500. However, they agreed to accept a reduction in rent to £1250, because the defendants were unable to find enough tenants due to the evacuation of London during World War II
. This promise to accept a lesser rent was unsupported by consideration. At the end of the war the flats became fully let, and the claimants demanded the return to payment of full rent. Denning J held that they were entitled to this from the last two quarters of 1945. Denning mentioned in an obiter dictum that had the plaintiffs tried to be reimbursed for the full amount they would have been estopped from doing so even though no consideration was present. This is because the plaintiff represented that he would accept half the rent and the defendant acted upon this.
Promissory estoppel requires (1) an unequivocal promise by words or conduct, (2) a change in position of the promisee as a result of the promise (not necessarily to their detriment), (3) inequity if the promisor were to go back on the promise. Estoppel is "a shield not a sword" – it cannot be used as the basis of an action on its own. It also does not extinguish rights. In High Trees the plaintiff company was able to restore payment of full rent (although estopped back rent was lost) from early 1945, but would have been able to restore full rent at any time after the initial promise provided a suitable period of notice had been given.
Estoppel is an equitable (as opposed to common law) construct and is therefore discretionary. In the case of D & C Builders v Rees the courts refused to recognise a promise to accept a part payment of £300 on a debt of £482 on the basis that it was extracted by duress. In Combe v Combe Denning elaborated on the equitable nature of estoppel by refusing to allow its use as a "sword" by an ex-wife to extract funds from the destitute husband.
Promissory estoppel is not available when one party promises to accept a lesser sum in full payment of a debt, unless the debtor offers payment at an earlier date than was previously agreed. This is the rule formulated in Pinnel's Case
, and affirmed in Foakes v Beer. This rule has, however, been thrown into doubt by the recent decision of Collier v Wright Ltd.
An example: Jack owns a property, on which Jill has stored a vehicle, with no contract between the two over the storage of Jill's car on Jack's property. Jack sends Jill a registered letter to her legal address, stating: "I am no longer willing to allow your car to stay here for free. Please come get your car, or make arrangements to pay me rent for storing it. If you do not do so, within 30 days, I will consider the car abandoned and will claim ownership of it. If you need more time to make arrangements, please contact me within 30 days, and we can work something out. … Jill does not respond. … In this case, Jill may be said to have relinquished her ownership of the car in question, by acquiescence and Jack's subsequent actions of registering the car in his name and exercising ownership of it, may be upheld by court under the doctrine of estoppel by acquiescence.
Estoppel by convention as understood in English law (also known as estoppel by agreement) occurs where two parties negotiates or operates a contract based on a shared assumption or mutual understanding of a legal effect (or interpretation) of that contract, they are bound by that belief, assumption or understanding if (i) they both knew the other operated under the same, and (ii) they both regulated their subsequent dealings on the same. It has been said that estoppel by convention is not truly an estoppel but merely an instance of estoppel by representation, promissory estoppel or proprietary estoppel, though the first of the three is its most frequent manifestation.
Estoppel by deed is a rule of evidence. A statement in a deed, usually facts stated in the recital of a deed, is evidentially conclusive against the parties of the deed. The parties are estopped from asserting otherwise.
case where the House of Lords ruled in Hunter v Chief Constable of the West Midlands Police that issue estoppel applied. Lord Diplock said:
Doctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
that may be used in certain situations to prevent a person from relying upon certain right
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
s, or upon a set of facts (e.g. words said or actions performed) which is different from an earlier set of facts.
Estoppel could arise in a situation where a creditor
Creditor
A creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...
informs a debtor
Debtor
A debtor is an entity that owes a debt to someone else. The entity may be an individual, a firm, a government, a company or other legal person. The counterparty is called a creditor...
that a debt
Debt
A debt is an obligation owed by one party to a second party, the creditor; usually this refers to assets granted by the creditor to the debtor, but the term can also be used metaphorically to cover moral obligations and other interactions not based on economic value.A debt is created when a...
is forgiven, but then later insists upon repayment. In a case such as this, the creditor may be estopped from relying on their legal right to repayment, as the creditor has represented that he no longer treats the debt as extant. A landlord may tell his tenant that he is not required to pay rent for a period of time ("you don't need to pay rent until the war is over"). After the war is over, the landlord would be "estopped" from claiming rents during the war period. Estoppel is often important in insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...
law, where some actions by the insurer or the agent estop the insurer from denying a claim.
Reliance-based estoppels
Under English law, estoppel by, promissory estoppel and proprietary estoppel are regarded as 'reliance-based estoppels' by Halsbury's Laws of England, Vol 16(2), 2003. Both Halsbury's and Spencer Bower (see below) describe all three estoppels collectively as estoppels by representation. These estoppels can be invoked when a promisee/representee wishes to enforce a promise/representation when no consideration was provided by him. The court will only enforce this lack-of-consideration promise if and only if it would be "unconscionable" for the promisor/representor to rescind from his promise/representation ("it's not fair!"). Estoppel when invoked in such a manner is often considered a rival or alternative to the law of consideration under contract law. Only proprietary estoppel can create a cause of action in English law, though the other two can act in support of a cause of action or a reply to a defence. Under American jurisprudence, equitable estoppel is available only as a defense, while promissory estoppel can be used as the basis of a cause of action.The requirement of inducement and reliance are broadly the same for all reliance-based estoppels:
- (i) the representor must have intended (actual or presumed) the representee, or have been reasonably understood by the representee as having intended him, to act on the relevant representation (or promise),
- (ii) the form of reliance must have been reasonable or intended, and
- (iii) the representation must have caused the representee to act in such a way that it would be "unconscionable" for the representor to resile. Detriment is measured at the time when the promisor proposes to withdraw his promise, not at the time when the promise is made.
Estoppel by representation of fact and promissory estoppel are mutually exclusive: the former is based on representation of existing fact (or of mixed fact and law), while the latter is based on a promise not to enforce some pre-existing right (i.e., an intention as to the future). Proprietary estoppel can operate only between parties who, at the time of representation, were in a pre-existing relationship, while this is not a pre-requisite under estoppel by representation of fact.
English courts will consider unconscionability taking into account many factors, including the behaviour, state of mind, and circumstances of the parties. Generally, the following eight factors are determinative (Michael Spence, Protecting Reliance: The Emergent Doctrine of Equitable Estoppel, Oxford: 1999, pp60–66):
- how the promise/representation and reliance upon it were induced
- the content of the promise/representation
- relative knowledge of the parties
- parties' relative interest in the relevant activities in reliance
- nature and context of the parties' relationship
- parties' relative strength of position zaneden
- history of the parties' relationship
- steps, if any, taken by the promisor/representor to ensure he has not caused preventible harm.
Estoppel by representation
Estoppel by representation of fact is a term coined by Spencer Bower. This species of estoppel is also referred to as "common law estoppel by representation" in Halsbury's Laws of England, vol 16(2), 2003 reissue.In The Law relating to Estoppel by Representation, 4th edition, 2004 at para I.2.2, Spencer Bower defines estoppel by representation of fact as follows:
A second definition can be found at Wilken and Villiers, The Law of Waiver, Variation and Estoppel, 2nd ed, Oxford: 2003, at para 9.02:
A representation can be made by statement or conduct. Although the representation must be clear and unambiguous, a representation can be inferred from silence where there is a duty to speak or from negligence where a duty of care arises. Under English law, estoppel by representation of fact is not a cause of action, though it may be a defence or acts in support of a cause of action. There is some debate whether under English law courts will take into account unconscionability under estoppel by representation of fact, although Australian courts clearly do.
Equitable estoppel
As noted above, under English law, promissory and proprietary estoppel are both species of equitable estoppel.Proprietary estoppel
Proprietary estoppel arises when A purports to give but fails to effectively convey, or promises to give property or an interest in property, to B, while being generally aware Crabb v Arun District CouncilCrabb v Arun District Council
Crabb v Arun District Council [1975] is a leading property and contract case concerning "proprietary estoppel". Lord Denning MR affirmed that where agreements concern the acquisition of rights over land, there is no need for both parties to provide a consideration for upholding the bargain...
that B will expend money or otherwise act to his detriment in reliance of the supposed or promised gift, so much so that it would be "unconscionable" not to enforce the expectation Taylor Fashions v Liverpool Victoria Trustees.
For example, in Dillwyn v Llwellyn in Chancery a father promised a property to his son, who took possession, expended a large sum of money on the house and otherwise improved the property. The father never actually gifted the property to the son. After his death the son, claiming to be the equitable owner, obtained a court judgment forcing the trustees to convey the land to him.
Similarly in Inwards v Baker [1965] 2 QB 29, a father encouraged his son to build a house on his own land, promising to leave that land to the son in his will. Subsequently, the son built a house and lived there for some 30 years. No transfer of land was made in the father's will when he died. It was held that despite this the personal representatives of the father were estopped from evicting the son.
While the courts will generally uphold the expectations of parties, if the parties are themselves not clear about their expectations the court's starting point will be the detriment incurred by the parties (per Robert Walker LJ Jennings v Rice
Jennings v Rice
Jennings v Rice [2002] is an English contract law case concerning proprietary estoppel.-Facts:Mr Jennings, a gardener, sued the administrator of his former employer, Mr Rice, to have a large house worth £435,000 conveyed to him on the ground that he had been given an assurance he would get it...
). Proprietary estoppel claims, therefore do not necessarily result in the transfer of the property to the claimant; in Jennings v Rice
Jennings v Rice
Jennings v Rice [2002] is an English contract law case concerning proprietary estoppel.-Facts:Mr Jennings, a gardener, sued the administrator of his former employer, Mr Rice, to have a large house worth £435,000 conveyed to him on the ground that he had been given an assurance he would get it...
itself, there was a monetary award.
In June 2008 the House of Lords re-visited the doctrine of proprietary estoppel, and in the process was quite fierce in describing its limits. In that light, it must be very doubtful that Mr Jennings would have got the result he did: properly understood, Jennings v Rice is a bit of a muddle, probably concerning promissory estoppel, with a bit of quantum meruit thrown in for good measure.
In Yeomans Row Management Ltd v Cobbe the House overturned the decision of a fairly heavy-weight Court of Appeal on the very issue of estoppel, thereby illustrating the level of confusion about the meaning of the doctrine. Lord Scott of Foscote, with whom the other Lords agreed, described at length that someone who seeks to rely on proprietary estoppel must establish an actual or certain interest in the property to which he claimed a right. Without that, he is not off the starting blocks.
In particular he remarked that the following rationes of Deane J in Muschinski v Dodds "repay careful reading" (his Lordship said they applied to proprietary estoppel as they do to constructive trusts):
Lord Scott added,
He then found that that was exactly what the Court of Appeal, no less, had done. Once the proprietary right is established, then and only then will the court consider the conduct of the party seeking to deny the right and if that conduct is wanting, will estop him from denying the right. The court should not begin with an examination of a party's behaviour.
Promissory estoppel
Promissory estoppel is the doctrineDoctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
that prevents a party from acting in a certain way because the first party promised not to, and the second party relied on that promise and acted upon it. In English law, a promise made without consideration
Consideration
Consideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise. It can take a number of forms: money, property, a promise, the doing of an act, or even refraining from...
is generally not enforceable, and is known as a gratuitous promise. For example, a car salesman promises not to sell a car over the weekend, but does so, the promise cannot be enforced. If however, the car salesman accepts one penny in consideration for the promise, the promise is binding and enforceable in court. Estoppel is one of the exceptions to this rule.
The doctrine of Promissory Estoppel was first developed in Hughes v Metropolitan Railway Co but was lost for some time until it was resurrected by Lord Denning in the leading case of Central London Property Trust Ltd v High Trees House Ltd.
In this case, the claimants let a block of flats to the defendants at an annual rent of £2500. However, they agreed to accept a reduction in rent to £1250, because the defendants were unable to find enough tenants due to the evacuation of London during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. This promise to accept a lesser rent was unsupported by consideration. At the end of the war the flats became fully let, and the claimants demanded the return to payment of full rent. Denning J held that they were entitled to this from the last two quarters of 1945. Denning mentioned in an obiter dictum that had the plaintiffs tried to be reimbursed for the full amount they would have been estopped from doing so even though no consideration was present. This is because the plaintiff represented that he would accept half the rent and the defendant acted upon this.
Promissory estoppel requires (1) an unequivocal promise by words or conduct, (2) a change in position of the promisee as a result of the promise (not necessarily to their detriment), (3) inequity if the promisor were to go back on the promise. Estoppel is "a shield not a sword" – it cannot be used as the basis of an action on its own. It also does not extinguish rights. In High Trees the plaintiff company was able to restore payment of full rent (although estopped back rent was lost) from early 1945, but would have been able to restore full rent at any time after the initial promise provided a suitable period of notice had been given.
Estoppel is an equitable (as opposed to common law) construct and is therefore discretionary. In the case of D & C Builders v Rees the courts refused to recognise a promise to accept a part payment of £300 on a debt of £482 on the basis that it was extracted by duress. In Combe v Combe Denning elaborated on the equitable nature of estoppel by refusing to allow its use as a "sword" by an ex-wife to extract funds from the destitute husband.
Promissory estoppel is not available when one party promises to accept a lesser sum in full payment of a debt, unless the debtor offers payment at an earlier date than was previously agreed. This is the rule formulated in Pinnel's Case
Pinnel's Case
Pinnel's Case 5 Co. Rep. 117a, also known as Penny v Cole, is an important case in English contract law, on the doctrine of part performance. In it, Sir Edward Coke opined that a part payment of a debt could not extinguish the obligation to pay the whole.-Facts:The plaintiff sued the defendant for...
, and affirmed in Foakes v Beer. This rule has, however, been thrown into doubt by the recent decision of Collier v Wright Ltd.
Estoppel by acquiescence
The doctrine of estoppel by acquiescence may prevail when Party A makes legal notice to Party B of Party A's assertion of a fact or legal principle or claim, and Party B fails to refute, reply to, or to defend (within "a reasonable period of time") against said claim. In this circumstance, Party B is said to have acquiesced to the claim or position taken by Party A, and by acquiescence, generally is considered to have lost the legal right to make a counterclaim.An example: Jack owns a property, on which Jill has stored a vehicle, with no contract between the two over the storage of Jill's car on Jack's property. Jack sends Jill a registered letter to her legal address, stating: "I am no longer willing to allow your car to stay here for free. Please come get your car, or make arrangements to pay me rent for storing it. If you do not do so, within 30 days, I will consider the car abandoned and will claim ownership of it. If you need more time to make arrangements, please contact me within 30 days, and we can work something out. … Jill does not respond. … In this case, Jill may be said to have relinquished her ownership of the car in question, by acquiescence and Jack's subsequent actions of registering the car in his name and exercising ownership of it, may be upheld by court under the doctrine of estoppel by acquiescence.
Other estoppels
Estoppel in pais (literally “by act of notoriety", or "solemn formal act”) is the historical root of common law estoppel by representation and equitable estoppel. Estoppel in pais and equitable estoppel are used interchangeably in American legal parlance.Estoppel by convention as understood in English law (also known as estoppel by agreement) occurs where two parties negotiates or operates a contract based on a shared assumption or mutual understanding of a legal effect (or interpretation) of that contract, they are bound by that belief, assumption or understanding if (i) they both knew the other operated under the same, and (ii) they both regulated their subsequent dealings on the same. It has been said that estoppel by convention is not truly an estoppel but merely an instance of estoppel by representation, promissory estoppel or proprietary estoppel, though the first of the three is its most frequent manifestation.
Estoppel by deed is a rule of evidence. A statement in a deed, usually facts stated in the recital of a deed, is evidentially conclusive against the parties of the deed. The parties are estopped from asserting otherwise.
Res Judicata
The civil law use of issue estoppel or res judicata (literally translated as "the fact has been decided") is relatively uncontroversial. It expresses a general public interest that the same issue should not be litigated more than once even when the parties are different. The criminal law application, called double jeopardy provides that a person should not be tried twice for the same offence. A notable case occurred as a result of the Birmingham SixBirmingham Six
The Birmingham Six were six men—Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker—sentenced to life imprisonment in 1975 in the United Kingdom for the Birmingham pub bombings. Their convictions were declared unsafe and quashed by the Court of...
case where the House of Lords ruled in Hunter v Chief Constable of the West Midlands Police that issue estoppel applied. Lord Diplock said:
Further reading
- David Swarbrick. Estoppel (England) – 1980- 1984, website of swarb.co.uk "Estoppel, in its various forms including proprietary and equitable estoppels".