Ben McFarlane, ‘Understanding Equitable Estoppel: From Metaphors to Better Laws’

This article has both a specific and a broader aim. First, it examines the law of promissory estoppel and of proprietary estoppel and considers if the doctrines can best be understood as part of a unified equitable estoppel. It will be argued that each of the two doctrines is itself composed of irreducibly dissimilar principles. The key to understanding the doctrines, therefore, is to identify and isolate these specific principles, not to merge them into an undifferentiated notion of equitable estoppel. Secondly, the article asks what an examination of equitable estoppel can tell us about the wider question of the nature of equitable principles and their place within a modern legal system. It will be argued that it is a mistake to view doctrines such as equitable estoppel as merely variants of their common law analogues. Rather, the adjective equitable stands as a warning that the noun to which it relates is used only in a metaphorical sense, and it is therefore dangerous to assume that the equitable principle must have even the same basic features as its common law namesake.

Ben McFarlane, Understanding Equitable Estoppel: From Metaphors to Better Laws. Current Legal Problems (2013). doi: 10.1093/clp/cut012. First published online: July 12, 2013.

First posted 2013-07-13 09:12:30

Leave a Reply