Estoppel is a legal doctrine recognised both at common law and in equity in various forms. It is meant to complement the requirement of consideration in contract law. In general it protects a party who would suffer detriment if:
Unconscionability by the defendant has been accepted as another element by courts, in an attempt to unify the many individual rules of estoppel.
Estoppel is generally only a defense that prevents a representor from enforcing legal rights, or from relying on a set of facts that would give rise to enforceable rights (e.g. words said or actions performed) if that enforcement or reliance would be unfair to the representee. Because its effect is to defeat generally enforceable legal rights, the scope of the remedy is often limited. Note, however, that proprietary estoppel (applicable in English land law) can be both a sword and a shield and the scope of its remedy is wide.
For an example of estoppel, consider the case of a debtor and a creditor. The creditor might unofficially inform the debtor that the debt has been forgiven. Even if the original contract was not terminated, the creditor may be estopped from collecting the debt if he changes his mind later. It would be unfair to allow the creditor to change his mind in light of the unofficial agreement he made with the debtor beforehand. In the same way, a landlord might inform a tenant that rent has been reduced, for example, if there is construction or a lapse in utility services. If the tenant relies on this advice, the landlord could be estopped from collecting rent retroactively.
Estoppel is closely related to the doctrines of waiver, variation, and election and is applied in many areas of law, including insurance, banking, employment, international trade, etc. In English law, the concept of legitimate expectation in the realm of administrative law and judicial review is estoppel's counterpart in public law, although subtle but important differences exist.
This term appears to come from the French estoupail or a variation, which meant "stopper plug", referring to placing a halt on the imbalance of the situation. The term is related to the verb "estop" which comes from the Old French term estopper, meaning "stop up, impede". Note the similarity between the English terms "estop" and "stop".
See venire contra factum proprium in legal systems based on civil law.
The defendant has done or said something to induce an expectation
The plaintiff relied (reasonably) on the expectation...
..and would suffer detriment if that expectation were false. Overview
The main species of estoppel under English, Australian, and American laws are:
Although some authorities regard reliance-based estoppels as mere rules of evidence, they are in reality rules of substantive law.
Estoppel by record This frequently arises as issue/cause of action estoppel or judicial estoppel where the orders or judgments made in previous legal proceedings prevent the parties from relitigating the same issues or causes of action,
Estoppel by deed Where rules of evidence (often regarded as technical or formal estoppels) prevent a litigant from denying the truth of what was said or done, and
Reliance-based estoppels These are the most important forms. Under English law, this class includes estoppel by representation of fact, promissory estoppel and proprietary estoppel (see Halsbury's Laws of England, Vol 16(2), 2003).
- Estoppel by representation of fact is known as equitable estoppel in American law.
Equitable estoppel as understood in English law, includes:
- promissory estoppel,
proprietary estoppel,
Laches is estoppel by delay. Laches has been considered both a reliance-based estoppel, and a sui generis type of estoppel. Reliance-based estoppels
In English law, estoppel by representation of fact is a term coined by Spencer Bower. This species of estoppel is also referred to as "common law estoppel by representation" in Halsbury's Laws of England, vol 16(2), 2003 reissue.
In The Law relating to Estoppel by Representation, 4th edition, 2004 at para I.2.2, Spencer Bower defines estoppel by representation of fact as follows:
Where one person ('the representor') has made a representation of fact to another person ('the representee') in words or by acts or conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive) and with the result of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in proper manner, objects thereto.
A second definition can be found at Wilken and Villiers, The Law of Waiver, Variation and Estoppel, 2nd ed, Oxford: 2003, at para 9.02:
An estoppel by representation [of fact] will arise between A and B if the following elements are made out. First, A makes a false representation of fact to B or to a group of which B was a member. [It is not necessary to demonstrate A knew that the representation was untrue.] Second, in making the representation, A intended or [in the alternatively,] knew that it was likely to be acted upon. Third, B, believing the representation, acts to its detriment in reliance on the representation. [It must have been reasonable to rely on the representation.] Fourth, A subsequently seeks to deny the truth of the representation. Fifth, no defence to the estoppel can be raised by A.
A representation can be made by words or conduct. Although the representation must be clear and unambiguous, a representation can be inferred from silence where there is a duty to speak or from negligence where a duty of care has arisen. Under English law, estoppel by representation of fact usually acts as a defence, though it may act in support of a cause of action or counterclaim.
Although there is some debate as to whether "unconscionability" is an element that English courts need to take into account when considering estoppel by representation of fact, the Australian courts clearly do (see Wilken and Villiers, para 9-03; The Commonwealth v Verwayen (1990) 170 CLR 394 at 444 per Deane J.)
Estoppel by representation of fact
As noted above, although both English and Australian laws treat promissory and proprietary estoppels as species of equitable estoppel, the status of estoppel by representation of fact is less clear in Australia. The decisions of Waltons Stores (Interstate) v Maher (1988) 164 CLR 387 and Commonwealth v Verwayen (1990) 170 CLR 394, both purport to fuse common law and equitable estoppels into a single unified doctrine, but the New South Wales Court of Appeal in Bryon Shire Council v Vaughan [2002] NSWCA 158 continues to treat estoppel by representation at common law as distinct from equitable estoppel. (See Meagher, Gummow & Lehane's Equity: Doctrines & Remedies, 4th edition, Butterworth: 2002, Chapter 17 and Pakinson, The Principles of Equity, 2nd edition, LBC: 2003, Chapter 7). This can be significant in deciding which court has jurisdiction to adjudicate on the issue.
The American doctrine of equitable estoppel is the same as the English estoppel by representation of fact:
The most comprehensive definition of equitable estoppel or estoppel in pais is that it is the principle by which a party who knows or should know the truth is absolutely precluded, both at law and in equity, from denying, or asserting the contrary of, any material fact which, by his words or conduct, affirmative or negative, intentionally or through culpable negligence, he has induced another, who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon them thereby, as a consequence reasonably to be anticipated, changing his position in such a way that he would suffer injury if such denial or contrary assertion was allowed. 28 Am Jur 2d Estoppel and Waiver § 28
Equitable estoppel
The traditional version of proprietary estoppel arises in relation to rights to use the land of the owner, and may even be effective in connection with disputed transfers of ownership. So if:
an estoppel may arise. Thus, in Dillwyn v Llwellyn (1862) 4 De G.F.& J. 517 C.A. a father promised a house to his son who took possession and spent a large sum of money improving the property. The father never actually transferred the house to the son. When his father died, the son claimed to be the equitable owner and the court ordered the testamentary trustees to convey the land to him. See also Inwards v Baker [1965] 2 Q.B. 29, C.A.
In Wilmott v Barber (1880) 15 Ch D 96, Fry J considered that five elements had to be established before proprietary estoppel could operate:
Although proprietary estoppel was only traditionally available in disputes affecting title to real property, it has now gained limited acceptance in other areas of law. Proprietary estoppel is closely related to the doctrine of constructive trust.
The term "proprietary estoppel" is not used in American law, but is part and parcel of the general doctrine of promissory estoppel. In English law, proprietary estoppel is distinct from promissory estoppel.
one party represents that he or she is transferring an interest in land to another, but what is done has no legal effect, or
merely promises at some time in the future to transfer land or an interest in land to another, and
knows that the other party will spend money or otherwise act to his or her detriment in reliance on the supposed or promised transfer,
the plaintiff must have made a mistake as to his legal rights;
the plaintiff must have done some act of reliance;
the defendant, the possessor of a legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff;
the defendant must know of the plaintiff's mistaken belief; and
the defendant must have encouraged the plaintiff in his act of reliance. Proprietary estoppel
The doctrine of promissory estoppel prevents one party from withdrawing a promise made to a second party if the latter has reasonably relied on that promise and acted upon it.
Promissory estoppel
- promissory estoppel,