Equitable estoppel and the enforcement of promises

Abstract

Taking as my starting-point the view that equity is essentially a mechanism for preempting the enforcement of common law remedies, I attempt to show that equitable estoppel is in the main stream of equitable developments; that its history is longer than that recognized in the more recent cases; and that it currently avails promisees who are unable to frame their suits in conformity with the requirements of common law contract. I have preferred to look to the distinctly equitable view of contract, obscured for a time by the courts of the nineteenth century, rather than to the answer suggested by Atiyah, in order to meet the problems encountered at law by reason of the. official obeisance to the doctrine of consideration. The equity, I suggest, facilitates a more unified picture, when placed in the context of equity's traditional aims, of recent changes, particularly in the field of licences: for by emphasising its equitable nature, one may more easily counter the objection that new interests in land are being created. Statute aside, the trust itself is a mere highly developed form of preemption of a legal claim; so, I urge, is the so-called "new equity". And again, the confusing kaleidoscope of recent cases may gain meaning if one sees them in this way. By reference to its history, its analogy to so-called "proprietory estoppel", and its lack of real connexion with common law estoppel, I suggest that equitable estoppel in all of its manifestations can properly found a cause of action, and that only an unjustifiable judicial timidity prevents the realization of this. Moreover, I stress that greater equivalence between law and the mores, both of the commercial and. the private transactor, may be obtained through greater use of the promise-enforcing remedy: that is to say, its criterion of enforcement, "equity", like that of the reasonable man at common law, is a parameter whose value may be varied according with the standards of the time.