1. Estoppel in English law 1
Estoppel in English law
Estoppel in English law is a doctrine that may be used in certain situations to prevent a person from relying upon
certain rights, 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.
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

2. Estoppel in English law 2
• 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:
“
where one person (‘the representor’) has made a representation of fact to another person (‘the representee’) in words or by acts or conduct, or
(being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive) and with the result of
inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may
afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by
evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in proper manner,
objects thereto. ”
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:
“
An estoppel by representation [of fact] will arise between A and B if the following elements are made out. First, A makes a false
representation of fact to B or to a group of which B was a member. [It is not necessary to demonstrate A knew that the representation was
untrue.] Second, in making the representation, A intended or [in the alternatively,] knew that it was likely to be acted upon. Third, B, believing
the representation, acts to its detriment in reliance on the representation. [It must have been reasonable to rely on the representation.] Fourth, A
subsequently seeks to deny the truth of the representation. Fifth, no defence to the estoppel can be raised by A. ”
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.[1]
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 Council[2] 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.[3]
For example, in Dillwyn v Llwellyn[4] 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[5]). Proprietary estoppel claims, therefore do not necessarily result in the transfer of the property to the

3. Estoppel in English law 3
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[6] 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[7] "repay careful reading"
(his Lordship said they applied to proprietary estoppel as they do to constructive trusts):
“
The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of
idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles or
by the legitimate processes of legal reasoning, by analogy, induction and deduction, starting from the conceptual foundations of such
principles... Under the law of the land... proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion,
subjective views about which party 'ought to win'... and the 'formless void' of individual moral opinion. ”
Lord Scott added,
“
A finding of proprietary estoppel, based on the unconscionability of the behaviour of the person against whom the finding was made but
without any coherent formulation of the content of the estoppel or of the proprietary interest that the estoppel was designed to protect invites,
in my opinion, criticism of the sort directed by Deane J in the passage cited... ”
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 doctrine 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.[8]
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.

4. Estoppel in English law 4
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,[9] and affirmed in Foakes v Beer.[10] This rule has, however, been thrown into doubt by the recent decision of
Collier v Wright Ltd.[11]
Estoppel by acquiescence
A legally binding contract occurs when one party makes an offer and receives an acceptance from the other party. A
contract must consist of an offer and acceptance, the intention to create legal relations and consideration all must be
present to make the contract legally enforceable. In contract law consideration is concerned with the bargain of the
contract, each party to a contract must be both a promisor and a promisee. They must each receive a benefit and each
suffers a detriment. The classic definition of consideration was given by the court in the case of Currie v Misa (1875)
LR 10 Ex 153, referred to consideration as consisting of a detriment to the promisee or a benefit to the promisor,
Lush J: “A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit
accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the
other".
The doctrine of consideration can therefore be seen as a set of rules, which play the principal role in the decision by
the courts as to which agreements or promises are found to be legally binding. Promissory estoppel is a term used in
contract law that applies where, although there may not otherwise be an enforceable contract. The importance of
promissory estoppel in contract law is that it has enabled legal obligations, which fall into the category of contract
law but fail to show any consideration, to be argued for. Promissory estoppel provides a way in which promises can
be legally binding even if no consideration has been given. Promissory estoppel relates to a form of future conduct.
The doctrine of promissory estoppel may not make the total contract fully enforceable. The specific facts in the case
must actually establish the elements of promissory estoppel before the contract becomes enforceable in law. The
promises within a contract will be enforced under the promissory estoppel doctrine, when enforcing the contract
promises avoids injustice. Lord Justice Denning is a leading figure in the field of promissory estoppel in the case of
Central London Property Trust Ltd v High Trees House Ltd (1947) KB 130, was concerned with the modification of
the rent payable on a block of flats during the Second World War. The importance of the case, however, lies in the
an obiter statement of principle which LJ Denning set out, “a promise intended to be binding, intended to be acted
on, and in fact acted on, is binding so far as its terms properly apply”. Applying this principle, Denning held that a
promise to accept a lower rent during the war years was binding on the landlord, regardless of the fact that the tenant
had supplied no consideration for it. There are limitations which must be satisfied to this doctrine which derived
from both Lord Cairns in the case Hughes v Metropolitan Railway Co. (1877) 2 AC 439 and LJ Denning in High
Trees case. They are: There must be a promise There must be a clear promise intended to alter the contracted
obligation. The court assesses intention objectively rather than taking evidence on the party's state of mind.
Woodhouse Israel Cocoa Ltd v Nigerian Produce Marketing Board [1972] AC 74, A contract for the sale of some
coffee beans was agreed to be payable in pound sterling. The sellers mistakenly sent an invoice stating price was

5. Estoppel in English law 5
payable in Kenyan Shillings. At the time the value of sterling and Kenyan shillings was equal. The buyers accepted
the delivery and invoice without objection. Subsequently the value of the pound fell quite dramatically in relation to
Kenyan shillings. The buyers then sought to revert to pound sterling as stated in the contract. The buyers conduct in
accepting the invoice unquestionably amounted to an implied clear and unambiguous promise to accept on those
terms.
The doctrine can only be used as a ‘shield not a sword’
The full force application of the equitable maxim estoppel only allows a litigant to “use it as a shield and not as a
sword” restricts the application of this doctrine to as far as only to provide a defence to a party and not to be used as a
cause of action against another. In Combe v Combe [1951] 2 KB 215 CA, a husband promised to make maintenance
payments to his separated wife but failed to do so. The wife brought an action to enforce the promise invoking
promissory estoppel. The court held that promissory estoppel does not create a cause of action and as such the
requirement of consideration in formation of contract is still relevant. Promissory estoppel is a rule of evidence that
prevents the promisor from denying the truth of statement which the promisee had relied. Denning LJ said; “The
principle does not create new causes of action where none existed before. It only prevents a party from insisting on
his strict legal rights when it would be unjust to allow him to enforce them”. However, this requirement seemed
changed in light of the decisions in Evenden V. Guildford City AFC (1975) QB 917, here the courts held: “that
promissory estoppel can be a cause of action”. Clear and unequivocal undertaking. The promise or representation
must be “precise” and “unambiguous” although it does not mean that such promise or representation must be
expressly made. The concept of ‘waiver’ has been recognised by both the common law and equity as a means by
which certain rights can be suspended, but then revived by appropriate notice. In Hughes v Metropolitan Railway
Co. (1877) 2 App. 439 HL, It can be seen that this case did not involve a "promise" as such, but merely an
"understanding". It had been suggested that Hughes could be restricted to "relief against forfeiture" cases, but this
was specifically rejected in the later cases. This case was the one on which Denning placed considerable reliance in
High Trees. It never applied to situations of part payment of debts, however, under the modern law the concept of
waiver has been effectively considered within ‘promissory estoppel’
Contractual / Legal relationship
It remains unsettled whether promissory estoppel may arise in pre-contractual relationships. In the case Brikom
Investments Ltd v Carr [1979] 2 All ER 753 CA, a landlord made an oral promise to his tenants that if they bought a
99 year lease to their flats he would repair the roofs of the flats at his own expense. After the leases had been signed
by the tenants, the landlord repaired the roof at a cost of £15,000. The landlord then claimed a contribution from the
tenants towards the cost of the repairs. The tenants refused to pay because of the promise made. The landlord
claimed that Carr could not rely on her promise since she had not acted on his promise because she would have
entered into the lease without any such promise having been made. However, Lord Denning was of the view that
promissory estoppel may arise from promise made by parties negotiating contracts. Similar views was expressed in
Durham Fancy Goods V. Michael Jackson (1969) 2 QB 839, where Donaldson J. held that contractual relationship is
irrelevant provided that there is “a pre-existing legal relationship which could, in certain circumstances, give rise to
liabilities and penalties”.
Detrimental reliance on the representation
The proof of possible detriment or prejudice, which will appear if the promisor is allowed to revert to his original
promise, is required. In Ajayi V. Briscoe (1964) 1 WLR 1326 or where he alters his position as a result of relying on
that promise when though he suffers no detriment. In Alan Co. Ltd V El Nasr & Import Co. (1972) 2 QB 18,
Denning detained that detriment is not an essential element of promissory estoppel. Therefore, for a plea of
promissory estoppel to succeed, there must be a change in circumstances of the promisee. This elementary
composition of promissory estoppel has been the core and central topic of discussion in the evolution of the doctrine.

6. Estoppel in English law 6
Temporary suspension of contractual obligations and rights
This doctrine does not operate to completely extinguish the original rights of the parties accruing from the contract.
It only provides for the suspension of such right, which can subsequently be revived after certain event or time. In
Tool Metal Manufacturing v Tungsten [1955] 1 WLR 761 HL, The courts held that generally promissory estoppel
will merely suspend legal rights rather than extinguish them. However, where periodic payments are involved and a
promise has been made to reduce the payments because of pressing circumstances which are not likely to persist,
promissory estoppel can be used to extinguish legal rights. This final limitation to the scope of estoppel operates in
the sense that the doctrine applies to representations relating to past and present events only by excluding the future
events executory promise. However, promissory estoppel may permanently extinguish the rights of the promisor to
claim lump sum after part-payment. In D & C Builders v Rees (1965) 2 QB 617, Lord Denning expressed that the;
“Promisor would not be allowed to revert to his strict legal rights and that the promissory estoppel will be final if
promisee understood the promise to mean final extinguishing of promisors strict legal rights”. To conclude, the
above limitations help to clearly outline its parameters. This essay has defined with the use of cases to demonstrate
the successful attempts to depart from the traditional approach set by the Hughes and the High Trees cases. The
parameters of this doctrine seem presently not to be clearly defined. These consequences have caused the parameters
of promissory estoppel to be no longer an established and well-settled area, which may interpret a huge problem to
the development of contract law. The threats to the limitations of promissory estoppel, manifested from the
continuing evolution of promissory estoppel, may pose turbulence in contract law and open the flood gate to
litigation. Therefore, the application of the modern promissory estoppel replaces the traditionally limitations set in
the landmark cases. This equitable doctrine which originally acts as an exception to the doctrine of accord and
satisfaction with subject to limitations now appears as an open and unlimited doctrine.
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 Six case where the House
of Lords ruled in Hunter v Chief Constable of the West Midlands Police[12] that issue estoppel applied. Lord Diplock
said:
“ The inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with
”
the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring
the administration of justice into disrepute among right-thinking people.
[13]

7. Estoppel in English law 7
Notes
[1] see Wilken and Villiers, para 9-03; The Commonwealth v Verwayen (1990) 170 CLR 394 at 444 per Deane J.
[2] [1976] Ch 179
[3] (1982) QB 133
[4] (1862) 4 De G.F.& J. 517
[5] [2002] EWCA Civ 159
[6] [2008] UKHL 55
[7] (1985) 160 CLR 583
[8] [1947] KB 130
[9] (1602) 5 Co Rep 117a
[10] (1884) 9 App Cas 605
[11] [2007] EWCA Civ 1329
[12] (1982)
[13] Polanski v Conde Nast Publications Limited (http:/ / www. publications. parliament. uk/ pa/ ld200405/ ldjudgmt/ jd050210/ polan-3. htm)
para 86
Further reading
• David Swarbrick. Estoppel (England) – 1980- 1984 (http://www.swarb.co.uk/lisc/Estop19801984.php),
website of swarb.co.uk "Estoppel, in its various forms including proprietary and equitable estoppels".

8. Article Sources and Contributors 8
Article Sources and Contributors
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