Users without a subscription are not able to see the full
content. Please,
subscribe
or
login
to access all content.
Contents
- Preliminary Material
- Main Text
- 1 Introduction
- 2 Acquiescence, Representation, or Promise
- Preliminary Material
- A Overview
- B Acquiescence
- 1 Overview
- 2 B Must Rely on a Mistaken Belief as to B’s Current Rights
- 3 A Must Know of the Right that A May Assert against B
- 4 A Must Know of B’s Mistaken Belief and of B’s Reliance on that Belief
- 5 A Must Fail to Take Reasonably Available Steps to Assert A’s Right against B
- 6 The Principle May Apply in the Absence of Any Positive Action by A
- 7 An Alternative Claim in Unjust Enrichment?
- C Representation
- D Promise
- 1 Overview
- 2 A Must Have Made a Promise to B
- (a) The Need for a Promise
- (b) The Need for a Promise and ‘Reasonable Reliance’
- (c) Questioning the Need for a Promise: Does Mere Encouragement Suffice?
- (d) Explaining References to Encouragement
- (e) Evaluating Decisions Which Used the Encouragement Test
- (f) Questioning the Need for a Promise: Lord Neuberger’s Suggestion in Thorner v Major
- (g) Conclusion: The Need for a Promise
- 3 B Must Reasonably Believe A’s Promise to Have Been Seriously Intended by A as Capable of Being Relied on by B
- 4 B Need Not Reasonably Believe A’s Promise to be Legally Binding
- 5 The Certainty Required of A’s Promise
- 6 Finding the Required Promise
- 2.213
- 2.214
- 2.215
- 2.216
- 2.217
- (a) Four General Principles
- (b) Three Significant Factors
- 7 A Comparison with the Common Intention Constructive Trust
- 3 Reliance
- Preliminary Material
- A Overview and General Points
- 3.01
- 3.02
- 3.03
- 3.04
- 3.05
- 3.06
- 3.07
- 3.08
- 1 The Independence of the Reliance Element
- 3.09
- 3.10
- (a) Reasonable Reliance
- (b) Detrimental Reliance
- (c) Strength in One Element Compensating for Weakness in Others?
- 2 Possible Restrictions on the Type of Conduct Capable of Counting as Reliance
- B Acquiescence
- C Representation
- D Promise
- 1 The Need for Reliance
- 2 The Causal Test for Reliance
- (a) Overview
- (b) The First Possibility: The Wayling v Jones Test
- (c) The Second Possibility: The Sole Factor Test
- (d) The Third Possibility: The Contributory Cause Test
- (e) The Fourth Possibility: The Significant, Real, or Substantial Factor Test
- (f) The Fifth Possibility: The ‘But For’ Test
- 3 Applying the Legal Test
- (a) Overview: The Need for Pragmatism
- (b) A Presumption of Reliance?
- (c) Factors Supporting a Finding of Reliance
- 3.257
- i B Performs a Condition Attached to A’s Promise
- ii A’s Promise is Made in Order to Persuade or Invite B to Take a Specific Step, which B then Takes
- iii B’s Conduct Follows an Agreement Intended by A and B to Clarify B’s Position
- iv B’s Conduct is Immediately and Objectively Detrimental to B
- v B’s Conduct, in the Absence of A’s Promise, would Expose B to a Significant Risk of Future Detriment
- vi B Fails to Take Up an Opportunity that, Prior to A’s Promise, B Had Realistically Considered
- vii B Bases His or Her ‘Whole Life’ around A’s Promise
- (d) Factors Reducing the Possibility of a Finding of Reliance
- 4 Detriment
- Preliminary Material
- A Overview
- B The Need for Detriment
- C No Presumption of Detriment
- D The Legal Test for Detriment
- 1 Overview
- 2 Potential Detriment Suffices
- 3 The Absence of an Expected Benefit Cannot, by Itself, Establish Detriment
- 4 The Detriment Must be Causally Related to B’s Reasonable Reliance
- 5 B’s Position Must be Judged ‘in the Round’
- 6 B’s Detriment Need Not Consist of Direct Financial Loss
- 7 B’s Detriment Must be Substantial
- 8 The Detriment Must be that of B
- 9 Countervailing Benefits Received by B and Causally Related to B’s Reliance Must be Taken into Account
- 4.113
- (a) Benefits Reducing the Extent of B’s Detriment
- (b) Benefits Eliminating B’s Detriment
- (c) Benefits Can be Taken into Account only if Causally Linked to B’s Reliance, or to A’s Failure to Honour A’s Promise
- 4.125
- 4.126
- 4.127
- i Benefits Not Factually Linked to B’s Reliance
- ii Benefits Not Causally Linked to B’s Reliance
- iii Benefits Arising from A’s Failure to Honour A’s Promise
- iv Benefits Received by B from A
- v Benefits Arising from an Alteration in the Relative Legal Positions of A and B
- vi Benefits Received by B from a Third Party
- vii Benefits Received by B as a Result of Acts of B that Could Not Reasonably have been Expected by A
- viii Benefits that B Did Not Receive, but Could Reasonably have been Expected to have Received
- E Applying the Legal Test
- 1 Overview
- 2 Detriment May be Established through a Potentially Wasted Expenditure of Money, Time, or Effort by B
- 3 Detriment Resulting from B’s Giving Up Actual or Potential Benefits
- 4 Detriment May Result from B’s Attachment to, or Dependence on, Particular Property
- 5 Detriment May Result from B’s Entry into Legal Relations with X
- F Assessing the Extent of B’s Detriment
- 5 Unconscionability
- Preliminary Material
- A Overview
- B General Points
- C Acquiescence
- D Representation
- E Promise
- 1 Only the Broad Sense of Unconscionability is Required
- 2 Unconscionability in the Narrow Sense
- 3 Unconscionability in the Broad Sense
- 6 Formal Requirements and Other Possible Bars
- Preliminary Material
- A Overview
- B Formal Requirements
- 1 Overview
- 2 Formal Requirements for a Contract for the Sale or Other Disposition of an Interest in Land
- (a) The Rule: Section 2
- (b) Section 2 and Acquiescence
- (c) Section 2 and Representation
- (d) Section 2 and Promises
- i The Submission: Section 2 Has no Impact on a Promise-Based Proprietary Estoppel Claim
- ii Possible Objections to the Submission that Section 2 Has no Impact on a Promise-Based Proprietary Estoppel Claim
- iii Summary: Section 2 and Promise-Based Claims
- iv The Impact of a Later Contract on a Claim Based on an Earlier Oral Promise
- 3 Formal Requirements for the Creation or Transfer of a Legal Estate in Land
- 4 Formal Requirements for the Creation or Disposition of an Equitable Interest in Land
- 5 Formal Requirements for the Disposition of a Pre-Existing Equitable Interest in Land
- 6 Formal Requirements for the Proof of a Trust of Land
- 7 The Wills Act 1837
- C Capacity
- D Ultra Vires and Illegality
- 7 The Extent of the Equity
- Preliminary Material
- A Overview
- B Acquiescence
- C Representation
- D Promise
- 1 The Suggested Test
- 7.35
- 7.36
- 7.37
- 7.38
- (a) Part One of the Suggested Test: A’s Basic Liability to B is to do What is Necessary to Ensure that, as Far as Possible, B Suffers no Detriment
- (b) Part Two of the Suggested Test: A’s Basic Liability to B May be Reduced if, on the Particular Facts of the Case, it is Not Unconscionable for A to Leave B to Suffer Some Detriment
- (c) Summary of the Suggested Test
- 2 General Principles
- (a) In Deciding on the Extent of A’s Liability to B, the Court Exercises a Discretion Structured by Principles
- (b) A Will Not Necessarily be Under a Liability to Honour His or Her Promise to B
- (c) A Cannot be Made to do More than Put B in the Position B Would Have Been in Had A’s Promise Been Performed
- (d) Where B Has Performed His or Her Side of an Agreement, A’s Promise is Likely to be Enforced
- (e) In Determining the Extent of A’s Liability to B, Countervailing Benefits Received by B Must be Taken into Account
- (f) In Some Cases A’s Liability Will Not be a Liability to Give B a Legal or Equitable Property Right
- (g) The Extent of A’s Liability to B Depends on the Concept of Proportionality
- (h) Further Factors to Consider in Applying the Suggested Two-Part Test
- 3 Assessing the Extent of B’s Detriment
- 4 Determining if A’s Liability is to Give B a Property Right
- 5 Comparison with Common Intention Constructive Trusts
- 1 The Suggested Test
- 8 Third Parties
- Preliminary Material
- A Overview
- B Representation
- C Acquiescence and Promise
- 1 The Burden of B’s Proprietary Estoppel
- (a) The Position after a Court Order in B’s Favour: General Position
- (b) The Position before a Court Order in B’s Favour: General Position
- (c) Land Registration Act 2002, s 116(a)
- (d) Defences Available to C
- 8.118
- 8.119
- i Statutory Overreaching
- ii Overreaching beyond s 2 of the Law of Property Act 1925
- iii Entry of a Notice on the Register
- (e) Continuing Personal Liability of A after a Transfer to C
- 2 The Benefit of B’s Proprietary Estoppel
- 3 Other Circumstances
- 1 The Burden of B’s Proprietary Estoppel
- 9 Remedies
- Preliminary Material
- A Overview
- B Representation
- C Acquiescence and Promise
- 1 Overview
- 2 The Initial Question: Specific or Non-Specific Enforcement?
- 3 The General Question: How to Give Effect to B’s Right in Practice?
- 4 A Further Question: is B’s Access to a Remedy Barred?
- 10 The Wider Legal Context
- Preliminary Material
- A Overview
- B Points that May Arise in Relation to a Proprietary Estoppel Claim
- C Alternative Claims
- D The Future Development of Proprietary Estoppel
- Further Material