Equitable Estoppel Today
| Published date | 01 July 1952 |
| Date | 01 July 1952 |
| DOI | http://doi.org/10.1111/j.1468-2230.1952.tb00241.x |
| Author | L. A. Sheridan |
EQ
U
IT
A.
13
T.,E
I3
S
'1'0
1'P
I3
L
'1'0
DRY
I
WIIEN
this articlc
was
first drafted
Coinbe
v.
Cornbe
was unreverscd
and
Candler
v.
Crrcwe,
Christitius
C?
Co.
was unheard of.
Thesc
decisions occasioncd tlic sccond draft which, barcly completed,
was
rendered iiindcquatc by
Mr.
J.
I?.
Wilson's articlc in thc
Law
Quarterly Review.
Rcsolvc to begin again coincided more
or
lcss
with
illitas
v.
Ilynms,
and
a
bclicf bcgan
to
germinate that an
altcration had only
to
be
made to this nrticlc
to
cvokc, by some
kind of tclcpnthy,
an
important judicial
or
juristic pronounccmcnt
on the subject.
Thc
latcst of thcsc is
Lord
Justice Dcnning's
article in this journal:
a
contribution which is doubly valuablc
for
coming from
a
lawyer
who
has
been largely responsible for the
rcccnt decisions.
So
rapidly liavc dcvclopmcnts bccri taking place
in this branch
of
the law that
"
today
"
may turn out
to
bc
morc
literal than
was
at first intendcd. pours
scorn
011
the term
"
equitable estoppel
"
and
criticises Lord Sclbornc
for
using the expression. In Spcnccr Bowcr's view (pp.
lG-lS),
all
cases
of
so-callcd equitablc estoppel fall into one
of
the following
three categories:
(1)
actions
for
damages
or
rescission bascd on
fraudulent misrcprescntntion
;
(2)
actions to enforce pcrformancc
of
contracts;
(3)
cstoppcl whcrc thcrc would also
be
cstoppcl at
common law. The Iirst two categories
arc
not estoppel, and the
third does not mcrit thc adjcctivc
"
equitable."
Notwithstanding the weight attaching to Spcncer
Bower's
state-
ments,
it
is submittcd that equity has
a
strong claim to recognition
on
the subject of estoppel. In the first place, although estoppel by
representation has become
a
fcaturc
of
the common law,3 that has
happcncd by way
of
common law adoption
of
principles worked out
in the Court
of
Chanccry. In the scvcntecnth ccntury common
law, estoppel by representation rcsultcd only from the doing of
a11
act
of
notoriety, such
as
livery of scisin '-hence the term
"
estoppel in pais."
Thc
Court
of
Chancery rccognised early on
George Spcncer Bower, in his work on cstoppcl
Lnw
Relating to Estoppel
by
Representation.
Scc also
Canadian Pacific Ry.
v.
n.
[lo311
A.C.
414,
nt
p.
429.
In
Citizens'
llarak
of
Loiiisiana
v.
First
Nnlionol
bad^
of
Ncru Orleans
(1873)
L.R.
6
H.L.
352,
at
p.
360.
SCC
W.
S.
IIoldeworth,
IIidory
of
English
Law,
Vol.
9,
p.
162:
"
. .
.
the
mot principle
of
estoppel by conduct
was
in
effect
rccogriiRed
both
by
the
coiirts
of
common law and
by
tlic court
of
Chnnccry
in
tlic lntlcr
part
of
the
cighlccn
111
ccntury
.
'
'
Coltc's
Insfifittcs,
p.
352n;
I'arkc
l3.
in
Lyon
v.
Reed
(1844)
13
M.
&
W.
286,
at
p.
309;
W.
Ashburner,
Principles
of
Eqiiily,
2nd cd.,
p.
446:
'I
Such
were
livery, entry, acccptaiicc
of
rcnt, pwtition, acccptanco
of
nn CS!~.!Q.''
Spcnccr Bowcr,
op. cih.,
at
pp.
4-5, discusscs the cxprcssioii
in
Dais"
or
"
in
pniis."
325
VOI..
15
21
826
THE
MODERN
LAW
REVIEW
VOL.
16
that even informal representations could give rise to estoppel.'
This doctrine was not introduced into the common law until the
late eighteenth eent~ry.~ In the second place, it would appear
that equitable estoppel,
or
at least some allied principle, can come
into play in respect of a representation that could not found an
estoppel at common law. The estoppel,
or
quasi-estoppel, or what-
ever other name will eventually adhere to the
High.
Trees
cases,
which results from a statement of intention, appears from the
declarations of its progenitors to be founded in equity. In the third
place, there are results of estoppel in equity which do not result
from estoppel at common law. In
IIzint
v.
Careq8
for example,
the first defendant was seiscd of an estate for life, with remainder
in tail to his son. The plaintiff, thinking the father had.an estate
of inheritance, approached the son (who was the other defendant)
for
his assistance in procuring a lease from the father, determinable
upon lives, offering a
E4OO
fine and a small yearly rent. The son,
who knew the true state of the title, informed the plaintiff that his
father had power to make such a lease, the father purported to
grant
it,
and the son received
2300
of the fine.
It
was, however,
no part of the agreement that the
son
should receive this money.
When the plaintiff discovercd that the father had no power to
grant the lease, he brought a bill in Chancery. The court ordered:
"
That since the plaintiff was not acquainted that the father had
exceeded
his
power, and he relying on the afirmation of the son
(who had most of the money) that the lease would be good without
his joining, by which he was deceived; that therefore both should
join at thcir own costs to make ?n assurance, and confirm the lease
to the plaintiff during the estate thereby granted."B This ease
does not fall within Spencer Bower's first category, as the claim
was
for
neither damages
nor
rescission;
it
does not fall within his
second category, as the. son made no promise to grant a lease
himself, nor did he even warrant that his father could do
so;
and it
did not at the time fall within the third category, as only the father
had done an act of a kind which could then result in estoppel at
common law; while at no time could a common law court have
made an order of the type made in that case. Yet, although there
was no mention of the word
"
estoppel
)'
in
Ilunt
v.
Carew,
the
principle upon which the case was decided
is
that underlying
estoppel in cquity,1° and no court has decided that the consequences
which resulted from that estoppel could not result from equitable
estoppel still.
8
IIunt
v.
Carcw
(1G49)
Nels.
46.
7
Montcfiori
v.
Alontcfiori
(17G2)
1
W.Bl.
3G3.
8
(1640)
Nels.
46.
See
also
Dycr
v.
Dycr
(1682) 2 Ch.Cas. 108;
Hobbs
V.
Norton
(1682)
1
Vern.
136;
Hunsdcn
V.
Clrcyncy
(1600) 2
Vcrn.
180.
*
N~IS.
48.
10
Sco
Holdsworth,
op.
cit.,
Vol.
9,
p.
1G1.
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