Abstract:
In this paper I set out to find what Lord Hoffmann once called ‘the moral values which underlie the private law concept of estoppel’. More precisely, I want to look for the justifying principle that underlies the doctrine of proprietary estoppel (PE). The function of PE, I argue, is to enforce a moral obligation to compensate another person (R) for the way in which he changed his position to his detriment in reliance on your representation, or give him a timely warning not to rely on it. I call it LPA (for Loss Prevention Assurance). The LPA obligation is versatile in its mode of acquisition; that is, one can either intentionally enter a relationship of which the LPA is the constitutive obligation, or be placed under the obligation as a result of her representation even where she never intended to assume any duties thereby. This versatility, I argue, can greatly help us to understand why the legal enforcement of this obligation, namely PE, operates in the way it does. In this paper I will focus on the voluntary mode of the LPA obligation, as I believe that its great explanatory potential for the legal doctrine has been unduly neglected.
The paper argues that the state is justified in enforcing this moral duty for two reasons: one is that by doing so, the law protects and fosters the valuable practice of assuming LPA commitments, thus securing the benefits that the practice can hold for both O and R. The second is that it would correct the harm done to the disappointed R. This dual justification for a state enforcement of LPA obligations, as empowering O and protecting R, can explain why the legal rule that sets to do the job, i.e. PE, is particularly vigilant in guarding R’s rights. Thus, even if the courts many times award R his expectation value, this should only be done as a necessary measure to ensure that R is fully compensated for his reliance loss. In that way, while the interpretation I suggest can be largely reconciled with the results in most of the case law, it rejects the language of ‘promise’ in which much of the case law is cast, suggests a significant change in the baseline for the remedy, and supports a minimalist approach to the award of proprietary remedy.
(book chapter)
Samet, Irit, Some Strings Attached: The Morality of Proprietary Estoppel (May 31, 2012). Forthcoming in: J. E. Penner and H. E. Smith (eds), The Philosophical Foundations of Property Law (Oxford: Oxford University Press).
First posted 2012-07-06 12:44:06
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