Should promissory estoppel be used as a sword

It can be used to extinguish and suspend strict legal rights and can only be used as a shield not a sword. The description of a “shield not a sword ” is valid for the doctrine of promissory estoppel as it can only be used in English law as a defence to an action to enforce rights that have been waived. Akenhead J held that, while an estoppel by convention cannot be used as a sword (rather than as a shield), analysis is required to determine whether it is being used as a sword. In particular: No presumption is raised by the fact that the party claiming the estoppel is the claimant rather than the defendant, or vice versa.

The statement promissory estoppel may be used as a shield but not a sword , a well as being the most famous in reference to the use of promissory estoppel , is also very apt in the description of the way in which promissory estoppel works. Is estoppel a shield or a sword? What are the elements of promissory estoppel? Can estoppel be enforced?

This does not mean that a person seeking to rely on promissory Estoppel cannot himself be the plaintiff by initiating an action. The doctrine of promissory estoppel is part of the law in the. The difference is that, under promissory estoppel fact patterns, there is a distinct lack of an actual contract. In essence, forget the sword and the shield.

Promissory estoppel is neither. The fourth requirement of promissory estoppel is that it cannot not be enforce against the promissor. Thus it can be used only as a defence and thus cannot be used as a sword. So, for promissory estoppel to act as a sword consideration will be required and somewhere in this doctrine lacks consideration.

And this reason makes a promissory estoppel to act as only shield not a sword. Justice Bhagwati also mentioned in one of the cases that if a promissory estoppel is used as a sword then surely the floodgates will be. Possibly, and I’m not sure, the English principle that a court will enforce a gratuitous promise in a deed is closer to the US doctrine of promissory estoppel.

However, it should be mentioned that promissory Estoppel can only be used as a shield and not as a sword in the sense that it can only be used to raise a defense and not be used to raise a cause of Action. The nature of estoppel , however, is such that it cannot be defined into simple elements. At best, the principles are a guide as to what the court will look for. General Commercial Agreements.

The promissory estoppel doctrine allows an injured party to recover on a promise upon which he relie and then suffered a loss as a result. Example of promissory estoppel : Charles is ten years from retirement age, and has worked for the company for years. Central london propertues v High Trees.

Moreover, promissory estoppels can only be used as a shield and not as a sword , while proprietory estoppel can be used. In most cases, one party was harmed or served injustice because of the broken promise that they relied on. Essentially, it prevents a promisor from arguing that the initial promise he made should not be upheld. The features of the different models of promissory estoppel which can be found in Australian case law have been examined in detail by Andrew Robertson. He stated the estoppel could only be used as a shield and not a sword.

In the High Trees case, there was an underlying cause of action outside the promise. Here, promissory estoppel created the cause of action where there was none. In this case, the court could not find any consideration for the promise to pay maintenance. A solution to this difficulty could be if the UK were to take the approach used in Australia, where in the seminal case of Waltons Stores (Interstate) Ltd v Maher the High Court of Australia affirmed that estoppel.

A woman sue her ex-husband for failing to keep his promise to pay $ 100. The function of the doctrine of promissory estoppel is defensive in that it estops a promisor from denying the enforceability of the promise. Metropolitan Railway Co. These are the precise notes of the whole course, catering for revision and examination pur.

City University of Hong Kong.