QuestionThe doctrine of promissory estoppel prevents(estops) a claimant from going back on a promise and has been described as a’shield and not a sword’.
Undertake anevaluation of this statement using related case law.(100 marks)Much of the common law is derivedfrom judicial decisions of courts in form of precedents. Over the time, law can be altered to mitigatethe harshness of outcomes. Promissory estoppel is a legal doctrine that can beused to prevent a person claiming his legal rights against representation orpromisehe has madetoward another party if promiseehas acted on reliance of thatrepresentation. A promise is enforceable if the claimant has shownconsideration with regards to the agreement between two parties however this isnot always the case. The court is therefore intervening to justify the outcome.Lord Birkenhead defined doctrineof Estoppel in Maclaine v Gatty 1921 1 AC 376,386: ‘.
..whereA has by words or conduct justified B in believing that a certain state offacts exists, and B has acted upon suchbelief to his prejudice, A is not permitted to affirm against B that a different state of facts existed at thesame time..
.’ 1The importance of equitableestoppels was considered in Crabb v Arun2, where claimant has actedupon the initial arrangement between two parties but later on the defendantchanged their mind. Lord Denning MR pointed out that claimant suffereddetriment in the course of argument for five or six years with no access to hisproperty as therefore claimant will have the court order in his favour. The equitable doctrine ofpromissory estoppel happens when there is a contractual relationship betweenthe promisee and the promisor either in context or words of mouth, even whenthere is no consideration provided.
In order for promissory estoppelto be considered they must contain these following elements:· The promisor must somehow generate an assumptionin the mind of promisee, usually implied or expressed terms. The assumption maybe one of fact or law, present or future. In the nature of belief, promiseeassumingpromisor willnot intend to enforce his legal rights. (Collin v Duke ofWestminster 1985 QB 581)· The promisee must have taken actions relied onthe assumption made by promisor. Very often, the promisee would suffereddetrimentsor where he alters his positions. In Alan Co.
Ltd v El Nasr Export & Import 3,it held that detriment is not an essential element of promissory estoppel.Thus, for an appeal of promissory estoppel it must subsequently change theenvironment of promisee.· It must be inequitable for the promisor to goback on his promise with respect to the promisee who has reliance on therepresentation. (D & C Builders v Rees 1965 2 QB 617)· It is an equitable doctrine, it is availableonly at the discretion of the court. The general equitable maxim that ‘equityis a shield, not a sword’. It does not create new rights. (Combe v Combe 1951 2 KB 215) Central London Property Trust Ltdv High Trees House Ltd4Facts: The plaintiff let a blockof flats to the defendant for 99 years lease with £2500 per year. There werenot enough tenants during the war.
The plaintiff decided to halve the rent toattract more tenants. After the war, the block is full of tenants so theplaintiff asked the defendant to resume paying the original rent however it wasrefused.Issue: Could the promise beenforced with no consideration provided ?Held: The representation made byplaintiff was to the future, which suspended strict legal right to obtain thefull rent during wartime. The decision was enforceable, as long as theconditions that led to the promise prevailed. So therefore after the period ofthe war, the plaintiff could claim the original rent. The decision outlined some keyelements of the doctrine of the promissory estoppel: · There must be a promise to waive strict legalrights· The promise must be intended to be bound bylegal actions· Actions relied on the representation of thepromise, not essentially caused preventable harm.
· The promise does not give rise to a cause ofaction but the court can give order to promisor acting consistently with thepromise. Promissory estoppel is anequitable doctrine so therefore only acts a shield not a sword. It is generallyoperate to suspend legal rights. Combe v Combe 1951 2 KB 215Facts: During divorce proceedingsbetween husband and wife, the husband promised to make maintenance payment tothe wife. The defendant failed to act consistently for his promise. Theplaintiff is however in better financial situation and did not chased for themoney until few years later.
The plaintiff sought to use promissory estoppel asa sword not a shield.Issue: Was the promise enforceable?Held: The plaintiff could nottake advantage of equitable doctrine of promissory estoppel to create cause ofaction where none existed before but only to defence waived legal rights. Bibliography· Law of Contract by Michael Furmston (2017) 107,132-9· Contract Law by Emily Finch and Stefan Fafinski(2017) 501 Contract Law by Ewan McKendrick (2017) 98. Case Law2Crabb v Arun District Council(1976) 1 CA Ch 1793 AlanCo. Ltd v El Nasr Export & Import (1972) 2 QB 184Central London Property Trust Ltd v High TreesHouse Ltd 1947 1 KB 130