Date: Fri, 11 Apr 2003 10:36:37

From: Adam Kramer

Subject: Estoppel in the HL

On the reliance/expectation debate, about which there seems to be loose agreement, useful contributions have been made by Spence (1997) 11 JCL 203 and in his book 'Protecting Reliance', by Cooke (1997) 17 LS 258 and her book 'The Modern Law of Estoppel', and by Robertson (1998) 18 LS 360. Spence and Robertson are in favour of the reliance model of estoppel, Cooke is in favour of the expectation model.

I'm in agreement with Paul: Yes estoppel as a rule of evidence should be recognised. I only ignored this because I was taking it as going without saying-- this is true estoppel rather than these other doctrines which, in my opinion, are best considered as not being estoppels at all.

On the informal dispositions of land point, I agree with Paul and am grateful for the Moriarty citation-- the article was in my head but not my filing cabinet. I don't think Jason's 'reasons given above' do meet the informal dispositions point, which is a question of when formality requirements should be allowed to be circumvented: there are good reasons for taking formalities in the transfer of property seriously, but the arguments for ameliorating the rules are not, except in the loosest sense, the same as the arguments for a strict rule of consideration (which may or may not be a formality rule). Kelvin seems to be with Jason on this. For me the situations are different not only in policy but in pattern: property law formalities are, in effect, about renderin g reversible a transfer of property that has otherwise taken place; whereas contract formalities are about rendering enforceable a promise, which is giving approval not disapproval and is a lot more work for the legal system.

(To throw something into the mix, another related formality requirement that comes into all this is the requirement of registration before a proprietary right can bind a purchaser, the question arising where the purchaser says he'll respect the right anyway).

On the contractual variation point, I line up with Paul against Jason and Kelvin. I think Kelvin's concern stems from seeing the contractual variation estoppels as the same as the harm caused reliance-theory (nigh on tortious) estoppels. The former do result in enforcing a promise, but I think that it is as Paul says-- a sneaky way of saying that there should be no requirement of consideration in these cases (and Williams v Roffey Bros was an equally sneaky way of saying the same thing on the other side: modifications by increase not decrease). I don't think it should be called estoppel, but I'm inclined to support the cases as I, unlike Jason, don't think any more than free agreement should be needed to vary a contract. If the consideration point bothers us, why not have an implied term in the original contract enabling all terms to be varied by agreement. Such a term would only be allowed whenever it reasonably appears to have been intended, but I think the facility is reasonably apparently intended in most or all contract cases. I haven't seen, and can't get to hand today, Benson's article, but I don't think that "[a] serious attack on consideration in variation cases, is a serious attack on consideration everywhere." I think I adhere to the new orthodoxy that providing courts are strict in checking for an intention to create legal relations and an absence of duress, consideration should not be required (although it should be evidentially important re: the intention and duress questions). I don't think detrimental reliance or unconscionability are necessary for these variations, except that detrimental reliance is good evidence of an intention to create legal relations, and unconscionability goes to the duress point.

My library does not yet have the newest Journal of Obligations and Remedies, but perhaps Jason, or Steve Wilson the editor, could post a contents list for it? I think it is a journal that we should support and that it will become an important journal over time. In the first edition of the Journal of Obligations and Remedies, in January, Elizabeth Cooke wrote an article on these issues ('Working together? Contract, estoppel and the business relationship') seeming to support the abolition of consideration in modification cases.

Adam Kramer

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