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6 Formal Requirements and Other Possible Bars

From: The Law of Proprietary Estoppel (2nd Edition)

Ben McFarlane

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 25 September 2021

Illegality and contract — Performance of contract — Applicable law — Property and title and choice of law — Contract and transfer of title — Passing of property

This chapter considers more specific statutory and common law rules that may also seem to have the potential to deny, or at least affect, a claim based on proprietary estoppel. It therefore considers the effect of informality, incapacity, ultra vires, and illegality. The chapter focuses in particular on informality, as this is the area of most practical importance. In its interaction with rules as to formality, capacity, vires, or legality, proprietary estoppel is no different from any other legal doctrine: it will not be allowed to operate in such a way as to stultify or undermine the statutory or common law rule. The effect of a particular statutory provision on a proprietary estoppel claim will therefore depend on ‘the nature of the enactment, the purpose of the provision and the social policy behind it’; the same can be said for the impact of a non-statutory rule. The court will also have to consider the conduct of each of A and B and whether it would, overall, be ‘disproportionate’ to deny B’s claim. The precise nature of the claimed estoppel is therefore important.

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