ABSTRACT
This paper analyses problems of classification and problems of attribution arising from cases of estoppel by silence. There has been a strong tendency in recent years to insist on sharp distinctions between different categories of estoppel by conduct. In the silence context, however, it can be extremely difficult, if not artificial, to draw sharp lines between different categories of estoppel. If a particular course of conduct can reasonably be understood to have induced assumptions of fact, rights and future conduct, then it is difficult to justify different consequences attaching to those different assumptions. The different forms of estoppel by conduct are based on the idea that the party against whom the estoppel is asserted is responsible for the harm that would be or has been caused by their inconsistent conduct as a result of the change of position they have induced in the relying party. In the silence cases, that responsibility is grounded in two factors: first, a reasonable expectation of disclosure on the side of the relying party; and secondly, knowledge of reliance or an intention to induce reliance on the side of the inducing party. It is argued in this paper that, in the absence of some positive conduct which directly induces the assumption, the inducing party’s state of mind is an essential element of their liability. Although it can be difficult to draw a bright line between non-disclosure and positive conduct which directly induces an assumption, there is a case to be made for treating the silence cases as a distinct category.
Robertson, Andrew, Estoppels by Silence (October 27, 2022) in E Bant and J Paterson (eds), Misleading Silence (Hart Publishing, 2020), pp 263-283.
Leave a Reply