Contractual Estoppel

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Contractual estoppel in the family of estoppels

Contractual estoppel in the family of estoppels

7.01 This chapter considers the place of contractual estoppel among other categories of estoppel.1 It starts with consideration of the issue, raised both judicially and academically, whether contractual estoppel is really an estoppel, or an anomaly, or altogether a misnomer. It then considers the principled basis of contractual estoppel and examines points of distinction from reliance-based estoppels,2 and those of distinction from and affinity with estoppel by deed.

Whether contractual estoppel is in truth an estoppel

7.02 Even as they found contractual estoppel, the courts sometimes doubted that it was estoppel that they found. Noting that contractual estoppel arose independently of detriment, reliance, and unconscionability, some judges at first instance considered that this disqualifies contractual estoppel from being recognised as estoppel, and similar views have been expressed by commentators.3 These observations contradict appellate authority which acknowledges that contractual estoppel stands on its own as a separate form of estoppel.4 As a matter of principle, they are founded on the proposition that detrimental reliance (or wider, unconscionability) is a defining characteristic of all estoppel, but that proposition is flawed. It mistakes specific conditions that must come together to raise a particular kind of estoppel for the nature of estoppel generally. That nature, the defining characteristic of estoppel, is the preclusive outcome that it produces:

An “estoppel” bars the object of it from asserting some fact or facts, or, sometimes, something that is a mixture of fact and law, that stands in the way of some right claimed by the person entitled to the benefit of the estoppel.5

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