If English law decided to abolish the doctrine of consideration it would rely on alternative methods such as promissory estoppel to replace the role of consideration in filtering out non-contractual agreements. The outcome of using alternative methods rather than consideration would impact on case precedency and it would change the formation of contracts as consideration is a key element in forming a contract. However since there has been legitimacy and applicability issues raised regarding the doctrine of consideration, it seems necessary to look into the possible abolishment of consideration and finding an alternative method to fill its role in contract law. This alternative method could be promissory estoppel if it wasn’t limited to a defence
Estoppel is a doctrine that can on occasion disable a party on going back on their promise when consideration isn’t present. It is currently used as a defensive mechanism in which a contract can be modified but not formed upon. Therefore usually consideration is used during the formation of contract but if consideration happens to not be present then estoppel can be used to enforce the promise even if consideration isn’t present. Promissory estoppel was first established in Central London Property Trust v High Trees House [1947] KB 130 in which Denning J used estoppel to prevent Central London Property Trust on going back on their promise to accept a lower rent. "In my opinion, the time has now come for the validity of such a promise to be recognized. The logical consequence, no doubt is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration", Denning J had generated an approach to allow a contract to exist even if consideration is not present, therefore this begs the question of whether we need
Although this would be a drastic measure since the case law in this matter is fairly unanimous in only using estoppel as a shield. Take the Baird Textile Holdings Ltd v Marks & Spencer Plc [2001] in which Judge LJ stated, “Estoppel is not capable of creating its own cause of action”. He also held that estoppel would necessitate further expansion to be used as an action. Therefore the need for further development on the laws of estoppel but it is not necessarily a bad alternative as seen in the Australian case of Waltons Stores (Interstate) Ltd v Maher [1988] 164 CLR in which the High Court of Australia allowed estoppel to be used as a sword, this meaning that estoppel can play an important role in the formation of contracts. Albeit that promissory estoppel could work as an alternative to consideration, the question is whether it would be a better alternative. Negatives for promissory estoppel (use the baird
A promissory estoppel is present if one party makes a promise to the other knowing that the other will rely on it. If the other party relies on it, there would be an injustice if the promise was not enforced. In the case of Sam and the chain store, unless the chain store had already paid him and/or spent money in anticipation of the arrival of the 1000 units, promissory estoppel would not be present since they did not rely on Sam’s promise. However, since the text reads that the chain store wrote a letter to Sam demanding that the 1000 units be sent, it implies that they had relied upon that
The article suggests that mutual intention should replace objective presumptions of intention to provide sufficient evidence for contract formations and argues that the Australian court system has a long way to go. It further investigates the different court hierarchies and examines the impact to them through different case law. The central argument presents that evidence of intention should be of utmost importance and considered in every case, negating a flat objective
-Court must be convinced that failure to comply with an agreement will lead to one of the parties to suffer prejudice. Court will protect innocent party, will provide remedy
Promissory estoppel is when a person makes a promise to somebody and they end up back out of the promise.
It is commonly accepted that an estoppel is a legal doctrine which prevents a person from negating or claiming a fact due to that person’s prior conduct. The doctrine of estoppel has been applied for years and different forms of estoppel have been established. For the purpose of this essay, I will predominantly concentrate on promissory estoppel in relation to the law of contracts. This essay will be approached by discussing the issues of pre-contractual liability, consideration, reliance and the doctrine as a cause of action or defence and a slight comparison of the standpoints that various jurisdictions hold towards these issues. These arguments would conclude the uncertainty of the doctrine and thus, the difficulty and issues that would be faced with the codification of the estoppel.
...ntradiction of terms. If the Court finds it unsatisfactory, doesn’t that imply that the Court already believes the authorities are not doing justice? How much “convincing” would they need? Duffy again points out the need for revision in the treaty.
The law of contract in many legal systems requires that parties should act in good faith. English law refuses to impose such a general doctrine of good faith in the field of contract law. However, despite not recognizing the principle, English contract law is still influenced by notions of good faith. As Lord Bingham affirmed, the law has developed numerous piecemeal solutions in response to problems of unfairness. This essay will seek to examine the current and future state of good faith in English contract law.
Lord Denning described estoppel succinctly as ‘a principle of justice and equity. It comes to this: when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so’ . Proprietary estoppel in turn is an informal method by which proprietary rights can arise. It can provide a defence to an action by a landowner who seeks to enforce his strict rights against someone who has been informally promised some right or liberty over the land. In turn it can be used as a defence or a cause of action. In order to show how the two doctrines are quite similar, a description of the elements of proprie...
...clauses must pass the test for reasonableness. In Smith v Eric Bush [1989] (1990 AC 831), a surveyor sought to exclude liability for negligent misstatement when completing mortgage valuations. The disclaimer excluded liability to any third party relying on their advice. it was decided that there was no contractual agreement between the plaintiff and defendant and it did not prevent any duty of care arising. It was subject to s2(2) of UCTA and was found to be unreasonable. As this case is so similar to that of Brad and Chardonnay, one could only assume that the same verdict would be made towards Briks & Mortimer Chartered Surveyors’ exclusion clause.
Justices Heydon and Crennan found that the intention should be determined by “the words used, not a subjective intention which may have existed but which cannot be extracted from those words.” They went on further to suggest that the “subjective intention is irrelevant both to the question of whether a trust exists and to the question of what its terms are.” Justices Heydon and Crennan made analogy between the form of intention required in express trusts with the intention of contracts, statutes and The Constitution, that is, they are all to be construed objectively.
Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la...
While there are lots of authors who are argued in favour of this codification since two centuries, practitioners and business in the English community had always been afraid about this idea. To understand the context of this debate, I will, first, briefly explain what do we generally mean by the term ‘codification’. Then, I’ll take few points about the origins of English commercial law and describe its modern definition. Finally, I will outline the main arguments why I am against the proposition of a commercial
Both the common law and the statutory law have recognized the weaker position of consumers. It is well established an exclusion clause will be valid and enforceable only if it is incorporated in the contract, use clear wordings and does not contravene statutory limits. In order to limit the unfairness resulting from exclusion clauses, the courts have developed certain principles such as the doctrine of non est factum in signature cases, ‘red ink-red hand’ principle in relation to ‘onerous or unusual’ terms, contra proferentem rule when interpreting ambiguous exclusion clauses and ‘fundamental breach’ principle.
The old common law had a doctrine of absolute contract under which contractual obligations were binding no matter what might occur (Paradine v Jane, 1647). In order to ease the hardship which this rule caused in cases where the contract could not be properly fulfilled through no fault of either party but due to occurrence of unforeseen events, the doctrine of frustration was developed.
In English Law consideration is one of the three main areas of an enforceable contract. It may be defined as an act, forbearance or promise made by a single party that constitutes the price for which the promise of another, is bought. In simple terms, the basic understanding of consideration may be seen as a ‘give and take’ tactic between two parties.