The many doctrines of promissory estoppel
If one concept in the early part of the contract law syllabus is difficult for the law student to digest, it is promissory estoppel, usually learned alongside the doctrine of consideration. This article tackles this tricky topic by dissecting promissory estoppel. by Adam Kramer, Lecturer in Law, University of Durham Promises are special in our society because there is a societal or moral convention that allows a promisor to be treated as bound to his promise (promises here including behaviour making others believe that one has promised, as well as the more obvious overt statements such as ‘I promise …’). The law of England and Wales reflects this moral convention by enforcing promises that are given in exchange for other promises or consideration, ordering the promisor to perform or to pay expectation damages. As we all know, such legally binding promises are called ‘contracts’. Once a contract has successfully been formed, it cannot be varied without a further promise given in exchange for another promise or some consideration. In other words, the doctrine of consideration applies to variation as well as to the formation of contracts – if two parties want to vary the contract by increasing or decreasing only one party’s obligations, that variation will only be binding if consideration is given by the benefited party. Just because there is a moral rule that makes promises binding, this does not mean that there are not other (perhaps less stringent) moral rules governing promises, agreements and statements. Think about a professional carelessly valuing my property: the valuation statement will usually be actionable both as breach of a contractual undertaking and as a commission of the tort of negligence, counting both as a breach of a binding promise and as a wrongful interference in my life through my reliance upon the statement’s accuracy. It will be shown that the various forms of estoppel are like the tort of negligence – they are legal responses to statements, agreements or promises yet do not arise from the binding nature of promises (which is dealt with by the law of contract and governed by a requirement of consideration); they arise, rather, from different moral principles. Equally important is the need to understand that promissory estoppel and proprietary estoppel are not best understood together – they do not amount to one doctrine fulfilling one function, justified by one principle; rather it will be suggested that really there are at least three principles at work in the doctrines that we call promissory and proprietary estoppel. denying is incorrect. Nobody can sue for estoppel any more than they can sue for lying; the rules of estoppel merely help a claimant to prove his case when he sues under a different, more limited legal principle which does give rise to a right to sue (a ‘cause of action’), such as the principles allowing legal actions for breach of contract or the commission of a tort. In addition, there are two types of estoppel that are creatures of equity and that appear to be based upon promises. These equitable estoppels are called promissory estoppel and proprietary estoppel. The analogy between promissory (equitable) estoppels, on the one hand, and estoppel in pais, on the other, is, however, imperfect. Promissory estoppels do not relate to denying the truth of an evidential fact, rather they relate to not being able to do anything except what one promised to do; rather than binding a party as to what is the case, they bind a party as to what they will or will not do in the future. Thus not only are promissory estoppels not true estoppels, but they would seem, at first sight, to herald the death of the doctrine of consideration, since promissory estoppels seem to make promises binding without the need for a contract. As we shall see, this concern is largely unfounded.
Promissory estoppel as equitable forbearance or waiver
At least as...
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