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Date: Fri, 11 Apr 2003 11:20:53 -0400 From: Allan Axelrod Subject: Estoppel in the HL
1. with respect to the part of the discussion about the function of 'estoppel', getting rid of 'estoppel' in re contracts which lack formal requirements seems easy enough via a formulation which probably fits a lot of cases: the non-conforming contract is to be given no effect therefore if the transaction is wholly executory, neither party may enforce but
if something of value has changed hands, its amount is awarded to the
supplier and if the contract is entirely executed, it is in repose =========== however, a large problem with a formulation so reeking of the common law is that it rejects a plausible premise that the consequence of non-compliance with a statute ought to be determined from the statute rather than common law deductions: the language then of the particular form statute ought to be consulted [that it will probably point in no direction at all does not mean it shouldn't be given primacy if articulate] at least in american law, there have been determinations with respect to particular form statutes [particularly one requiring a writing for a listing with a real-estate broker] that the legislative intent behind the formal requirement is so serious that non-compliance precludes either enforcement or restitution. 2. often, large legal ideas like 'estoppel' are used to explain results reachable by narrower concepts: there was a spectacular article around the beginning of the 20th century called 'waiver distributed', in which 'waiver' was shown to be the name of a lot of other things, such as 'estoppel'
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