Contractual Estoppel

Page 1


Introductory observations

Introductory observations

1.01 In the ordinary course of events, to succeed in civil litigation a party needs to establish by evidence a fact in issue, or secure the resolution in her favour of a question of law, or overcome the opponent on an issue of mixed fact and law. Her case may often be made by convincing the court that the matter should be determined by her opponent’s own statement or conduct.1 The opponent party is then said to be estopped, which means that she loses her case, as it were, out of her own mouth or by her own act.

The underlying principle

1.02 The term “estoppel” is itself a shorthand expression of the underlying principle. As Lord Denning MR put it:

The word “estoppel” only means stopped. You will find it explained by Coke in his Commentaries on Littleton (19th ed, 1832), vol. II, s. 667, 352a. It was brought over by the Normans. They used the old French “estoupail.” That meant a bung or cork by which you stopped something from coming out. It was in common use in our courts when they carried on all their proceedings in Norman-French. Littleton writes in the law-French of his day (15th century) using the words “pur ceo que le baron est estoppe a dire ceo,” meaning simply that the husband is stopped from saying something.2

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