Proprietary Estoppel Analysis

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Lord Denning, in High Trees, set out the test for promissory estoppel, which consists of three requirements, in addition to the limitation of operation that it may not be used as a cause of action. To estop the promisor from enforcing his legal right, there must be: 1. a clear and unequivocal promise not to insist on strict contractual rights (intended to affect the legal relations between parties); 2. the promisee must reasonably rely on the promise; 3. it must be inequitable for the promisor to resile from the promise.
Another, more developed, form of equitable estoppel is proprietary estoppel, which will arise from a belief that an interest in another party’s land has been granted. This type of estoppel is free from the restriction
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Along with the aforementioned blows to the impact of consideration it can be implied that extending the doctrine is getting less and less unlikely. In Combe v Combe, Lord Denning considered deciding in favour of Mrs Combe, seeking to use promissory estoppel as a ‘sword’ to enforce her ex-husband’s promise of maintenance payments. His reason for deciding otherwise was that “[t]he doctrine of consideration is too firmly fixed to be overthrown by a side-wind.” But the doctrine of consideration has been facing criticism, and other legal systems show us that it may not be entirely necessary at all. It may even lead to unfair or absurd decisions. If, for example, an employer gave an interest-free loan to their employee, currently this promise could not be enforced by the employee for lack of consideration; estoppel will not be available as a cause of action. But this may be a desirable arrangement for both parties, - it might confer a practical benefit onto the lender, because the loan might help the employee perform his obligations under the employment contract more efficiently. And it is one that they both entered into voluntarily. Strangely, this promise could be enforced if the borrower had paid just £1 to the lender, or done him a small favour. Cases like this highlight the technicality and …show more content…
creating new remedies of specific enforcement for cases in which compensatory damages would have been inadequate. Promissory estoppel follows the same principle – a promise that would not be binding under common law rules becomes binding in equity. The objective of preventing or remedying loss flowing from unconscionable behaviour could be furthered by the extension of the doctrine. There may be a difference between avoiding a detriment (using estoppel as a ‘shield’) and enforcing a benefit (using it as a ‘sword’), but both reflect the same purpose: enforcing promises in the context of inequitable conduct, and fulfilling legitimate

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