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In MWB Business Exchange Centres Ltd v Rock Advertising Ltd the Court of Appeal held that when an ongoing contract is varied so that one party's obligation to pay money is reduced, the variation is binding as long as the other party receives a practical benefit. In doing so, the Court of Appeal effectively confined the rule in Foakes v Beer to one-off payments. This raises serious questions about the continued survival of Foakes v Beer. On the other hand, the Court of Appeal ensured that Foakes v Beer would not be killed off via equity by moving away from the suggestion in Collier v P & M J Wright (Holdings) Ltd that an agreed part-payment of a debt by a debtor will always raise an estoppel preventing the creditor from demanding the remainder of the debt.

The ‘acquiescence’ category of proprietary estoppel is a rare example of responsibility for pure omissions in private law. On liberal-individualistic theories of ownership, the policy considerations against liability for nondoing are exceptionally powerful in the context of rights over land. Nevertheless, I argue that in proprietary estoppel the law is justified in imposing a duty on the right-holder to alert a stranger when his actions are based on a mistake. Owners of property rights are under what Honore termed a ‘special duty’ to contribute to the social good of efficient market for land by publicising their rights. This ‘duty to speak’ is however relatively weak and cannot completely suppress considerations against liability for omission. While liability in the acquiescence category can be justified in principle, the current law, in which owners who failed to correct the mistake of the relying party incur similar liability to owners who actively encouraged the other party to rely, is untenable.

As generally understood, a tenancy2 by estoppel results where a person purports to grant a tenancy of land, but does not in fact have a sufficient interest in the land to create a tenancy: he is then estopped from denying that the relationship of landlord and tenant exists between him and the grantee. Thus where a tenant at will3 or a tenant on sufferance4 purported to grant a tenancy, and the tenant went into occupation, a tenancy by estoppel is created; likewise where a person who had contracted to purchase a freehold purported to grant a lease before completion.5 As between the parties it is as though they are actually landlord and tenant even though they are in fact not. The authorities6 describe a tenancy by estoppel as a different creature from the more familiar estoppel by representation, as a development from the doctrine of estoppel by deed,7 but extended in the field of landlord and tenant to all grants whether merely written or oral.8 A tenancy by estoppel could be said to be the result of the operation of estoppel by grant. Unlike its cousin, estoppel by grant does not rely upon any express representation as to title: 'It is the product of a fundamental principle of the common law which precludes a grantor from disputing the validity of his own grant.'9

Following a tendering process, two parties enter into negotiations for a contract which they both confidently expect will materialise. One undertakes preparatory work or incurs expenses at the request of the other. But negotiations, through no fault of either party, break down, and a binding contract is never formed. The expenses, or remuneration for the work, clearly cannot be recovered as a matter of contract law. Even if there was mala fides, English law does not formally recognise a principle of culpa in contrahendo, or a duty of good faith owed by parties to pre-contractual negotiations. The common law courts have afforded parties substantial freedom in this respect. 1 The request for the work to be done or the expense to be incurred might ground an equitable promissory estoppel,2 were it not for English law's reluctance to allow that doctrine to be used as a sword, not merely a shield.3 Neither party is guilty of tortious conduct. Must the party performing the work or incurring the expenses therefore bear the loss, or can the law of restitution be called in aid of recovery? This was the question which confronted Rattee J of the Chancery Division in the recent case of Regalian Properties plc & Another v London Docklands Development Corporation.4

The principal purpose of this article is to consider how well, or badly, the English system of land law and conveyancing handles the exceptional, but nonetheless important, cases of informal transactions in land. The article is in six parts. Part 1 points to the high degree of formality normally required for transactions in land and discusses the exceptional cases where informal transactions are permitted. Some criticisms and suggestions for reform are made. One of the exceptional cases where interests in land can arise informally is under the doctrine of proprietary estoppel, and part 2 considers whether interests so arising can be fitted satisfactorily into a conveyancing system which increasingly, because of the spread of the title registration system, requires interests in land to be registered in order to bind subsequent purchasers. The conclusion reached is that both the registered and the unregistered land systems cope satisfactorily with such interests. In part 3, attention is turned to a well-known but difficult case, ER Ives Investment Ltd v High,l which is treated in many of the books as a case on proprietary estoppel. The Court of Appeal had great difficulty in deciding the case on its merits without doing violence to the registration requirement. It is argued that none of the judgments gives a satisfactory explanation, but that using a different form of estoppel, a better explanation is possible which is consistent with both the registered and unregistered land systems. In part 4 it is argued that Ives v High is but one example of a wider category of cases where the courts show themselves to be unhappy with the proposition that an unregistered interest can be defeated by a purchaser who has actual knowledge of that interest. This point is illustrated in part S by a brief examination of the Green family saga,2 and it is argued that the principal decision in favour of Mrs Green causes concern. Part 6 concludes the article with an argument for abolishing the protection given to a purchaser with actual knowledge, and some other proposals for reform.

Since the foundation of the European Community, the influence of European Community (EC) law on the national legal system has expanded in two ways: first, in the growth in volume and scope of the substantive law emanating from the EC's legislative institutions; and second, in the readiness of the courts of the Member States to enforce and give practical effect to those laws. Differences over substantive lawmaking have largely been played out in the political field, whereas controversy over the application and enforcement of EC law has taken place, as a result of decisions of the European Court of Justice (ECJ), mainly in the national judicial sphere. The ECJ developed the doctrine of direct effect at an early stage in its jurisprudence, to ensure that the body of law provided for in the EC Treaties would have effect in the various Member States without the need for national implementing legislation.l Through a series of cases the Court developed this doctrine and applied it to articles of the EC Treaties,2 to EC Regulations3 and, in a more limited way, to EC Directives. Direct effect means that provisions of EC law may confer rights upon individuals and are required to be directly applied by national courts at the suit of individual litigants, without the need for domestic implementing legislation.4 Article 189 of the EEC Treaty provides that Directives shall be binding as to their aim, but that the choice of form and method of their implementation remains with the Member States. Despite this provision, the ECJ nevertheless decided that Directives could be relied upon directly by litigants before national courts in certain situations.5 The Court has declared that Directives will not have direct effect where their terms are insufficiently precise or where, although clear and precise, those terms are conditional or leave some discretion to the Member States.6 The major limitation on their direct effectiveness, however, is that Directives cannot be directly enforced in a 'horizontal' situation, ie in proceedings against a private party rather than against the State.7 The case for their direct enforcement against the State appears to be based on a concept of estoppel whereby the State may not rely, as against an individual, upon its own failure to implement a Directive properly and on time.8