What is promissory estoppel? Is an estoppel a sword? Is the general doctrine of estoppel a shield? In this way promissory estoppel ensures that the promisee is shielded from any unfair dealings of the promisor but the promisor is not in danger of any reverse action such as being sued.
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. This essay will evaluate the statement “The doctrine of promissory estoppel prevents ( estops ) a claimant from going back on a promise and has been described as a ‘shield and not a sword ’. It will be necessary to evaluate the doctrine of promissory estoppel through considering the judicial dicta of relevant case law and extracting the rules created by the judiciary. 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. It must be noted that proprietory estoppel is capable of conferring a right of action as well as substantive equitable right of property.
Establishing a claim by way of proprietory estoppel. It is not used as a course of action. Promisor can use this defence to recover the damages suffered by him because of the reliance on the promise. 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.
A defendant or a plaintiff can only use estoppel as a shield not a sword , which means it gives them no right of action, but only of objection. Estoppel is a shield not a sword – it cannot be used as the basis of an action on its own. It also does not extinguish rights.
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. This does not mean that a person seeking to rely on promissory Estoppel cannot himself be the plaintiff by initiating an action. Therefore, the promise does not give rise to a cause of action but the courts will prevent the promisor acting inconsistently with the promise.
Birkett LJ adopted a phrase of the husband’s counsel that the principle is ‘one to be used as a shield and not as a sword ’. Denning LJ said that the principle ‘does not create new causes of action. Promissory estoppel is a defence not itself a cause of action. Follow the Minutes of. Denning, writing for the court, clarifies his words concerning estoppel from High Trees.
However it has since been settled that although the plea of estoppel is a shield for the protection of a defendant, it can also validly be employed as sword by a plaintiff…” (underlined for emphasis) In Abalogu v. NWLR (Pt.837)3it was held as follows: “Although the plea of estoppel , generally, is a shield for. Proprietary estoppel is a form of promissory estoppel. Arun District Council.
But there must be an estoppel. QB 1 Lord Denning held that detriment is not an essential element of promissory estoppel. Thus, for a plea of promissory estoppel to succee there must be a change in circumstances of the promisee. The third requirement of promissory estoppel is that it would be inequitable for the promisor to.
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.