ABSTRACT
Taxonomic uncertainty has long been a feature of equitable estoppel. While the unifiers had their heyday in a period roughly centred on the 1980s, the splitters are now in the ascendant. At the forefront of the movement is Ben McFarlane, who has argued that what is known as ‘equitable estoppel’ in fact consists of five separate principles. This paper questions that growing consensus. It considers the case for the unity of equitable estoppel by identifying what might be understood to be its core principle, and then considering a series of questions that can help us to understand whether that core principle can be said to underlie ‘equitable estoppel’ as a whole. A central plank in the case for the disunity of equitable estoppel is the claim that a promise is required for some categories of case but not others. While there is some strength in the argument that a promise should be required, numerous leading cases arising in different contexts make it clear that responsibility for detrimental reliance on an assumption as to one’s future conduct does not depend on the making of a promise or commitment.
Robertson, Andrew, The Form and Substance of Equitable Estoppel (January 31, 2019) in Andrew Robertson and James Goudkamp (eds), Form and Substance in the Law of Obligations (Oxford, Hart Publishing, 2019) 249–273.
First posted 2020-10-08 18:20:01
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