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This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers ‘subject to’ rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

Much has changed since 1925, even in land law. The emergence of principles of proprietary estoppel has been one of the most striking developments. For some litigants, these principles have been a source of new opportunities; for many judges and academics, they have been a source of new problems. It is therefore no surprise that, by means of what is now section 116 of the Land Registration Act 2002, the Law Commission attempted to deal with one of these problems, albeit only in disputes relating to registered land.

Repeated comments are made as to the similarity between the common intention constructive trust and proprietary estoppel, but there remains considerable confusion over the precise nature of this interrelationship. The constituent elements of each doctrine bear close comparison and, although their respective modes of operation remain distinct, they may lead to similar results. The recent redefinition of the Pallant v Morgan equity provides an opportunity to probe once more the interrelationship between these doctrines. The Pallant v Morgan1 equity explores the operation of the Rochefoucauld v Boustead2 doctrine in the context of the joint acquisition of land and demonstrates the enforceability of express oral intention based upon a wider range of unconscionablity than the detriment based conduct which dominates both the common intention constructive trust and estoppel.

IN principle, the law relating to the termination of bare (or gratuitous) licences should be relatively simple. Bare licences do not enjoy statutory protection and a bare licence cannot impose contractual obligations on the licensor. There are, however, four elements which complicate the law. First, through the operation of the doctrine of proprietary estoppel, the licensor may be estopped from revoking a bare licence. Second, a licence which has been acted upon is not revocable. Third, on revocation of a bare licence, the licensee must be given a reasonable “period of grace” or “packing-up period”. Fourth, it is sometimes said that a bare licence may be revoked only “on reasonable notice.” These four elements overlap (in part) and, in the case law and academic literature, there is some degree of confusion. The difficulties which exist can be resolved by more rigorous analysis.

KEN Holt was a wealthy farmer in Lincolnshire. In 1952 he befriended Geoffrey Gillett and then persuaded the young man to work on the farm instead of continuing at school. For nearly 40 years, Gillett was Holt’s right arm, a relationship that did not falter when Gillett married. Over these years, when Gillett managed the farm and eventually entered into partnership with Holt, Holt repeatedly promised that Gillett would be the principal beneficiary of his will. These were no idle boasts, but were repeated often, in public, and were given effect in several versions of Holt’s will. In 1992, Holt formed a friendship with Mr Wood (a trainee solicitor), the result of which was the eventual breakdown of his relations with the Gillett family and their exclusion from his will. In Gillett v. Holt [2000] 3 W.L.R 815 Geoffrey Gillett asserted that Holt was estopped from changing his will so as to deny Gillett his expected legacy. As we might think, a simple case of proprietary estoppel based on assurance, reliance and detriment. However, Carnwath J. at first instance thought otherwise and rejected estoppel because first, Gillett could not establish that Holt had made an irrevocable promise not to change his will (and everyone knows that wills may be changed), and secondly, Gillett had suffered no detriment.

As is well known, section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 effected a fundamental change in the law respecting formalities for contracts relating to land, rendering the doctrine of part performance obsolete.' Yaxley v Gotts2 presented the Court of Appeal3 with the opportunity to determine how far other equitable remedies, in particular proprietary estoppel, survive the new provisions. Regrettably, the court did not deal with the question as clearly as might have been hoped. Although the judges unanimously recognised the claimant's informally created property rights, the judgments did not fully explore the relationship between section 2, constructive trusts and proprietary estoppel. The extent to which equitable remedies can protect a claimant falling foul of section 2 accordingly remains obscured by opaque judicial reasoning.

The current law of resulting and constructive trusts and proprietary estoppel is acknowledged to provide uncertain and often unsatisfactory remedies to disputes concerning the allocation of property rights in the family home. This article reviews these inadequacies, particularly as they affect the growing numbers of cohabitants, and puts forward radical proposals for reform. It is argued that the special nature of the family home - where the parties' relationship is based on ‘trust and collaboration’ rather than commercial principles - requires reform which takes account of the broader contributions of both parties to the home and to the family in allocating property rights. The law should strive to treat all family homes in a consistent way, provide greater certainty of outcome, and yet do justice between the parties. A system of modified community property is therefore proposed. Broadly, this will provide a sliding scale of allocation of property rights over time for non-owner partners and a presumption of enhancement of the interest of the primary carer of children of the relationship. However, contracting out should be permitted; and a discretion to adjust the presumptive rights retained by the court where ‘manifest injustice’ is demonstrated.

Ownership of the family home is usually not disputed until either the relationship between the spouses or cohabitants breakdown or there is a competing claim over the property by a third party. In such circumstances, determination of ownership rights becomes imperative. The Matrimonial Causes Act 1973 gives the courts adjustive powers to deal with disputes between spouses on the breakdown of the marriage. Notwithstanding this, there may be circumstances where it will be necessary or desirable to determine property rights between spouses. Furthermore, the adjustive powers of the courts are not applicable to cohabitants. Thus, in the absence of legal co-ownership in the family home, cohabitants and spouses who cannot rely on the 1973 Act will have to establish an equitable interest in the property. The analyses relied on are primarily based on property law and trusts principles and, more particularly, imputed trusts and proprietary estoppel. Under trusts principles, imputed trusts are usually taken to refer to resulting and constructive trusts.

Some proprietary estoppel cases arise out of bargainlike agreements or understandings. One party promises another that he has, or will acquire, an interest in land often in return for some quid pro quo.The nature of the interest to be acquired is well-defined, it is understood as being intended to be taken seriously. The arrangement is reached in a commercial context and, to a greater or lesser extent, there is an expectation that a formal written agreement or grant would be appropriate. Nevertheless, the assurances are clearly not ‘subject to contract’ and are intended to bind the party giving them. The question is whether these arrangements need to comply with the formalities or registration requirements demanded of contracts for the disposition of an interest in land. Should it be possible to rely on proprietary estoppel where the parties have not complied with the formalities required for the disposition of an interest in land? Ultimately, the question is whether or not proprietary estoppel operates independently of contract even when it arises out of a bargain between the parties.

Section 2(1) of England's Law of Property (Miscellaneous Provisions) Act 1989 requires agreements for the sale or other disposition of an interest in land to be in writing and signed by or on behalf of the parties. Section 2(5) excepts constructive trusts from the operation of section 2(1). It is rare but possible for a proprietary estoppel claim to arise out of commercial negotiations. Several English Court of Appeal decisions suggest, however, that proprietary estoppel is no longer available in respect of claims based on assurances given as part of a bargain. Instead, such cases can only succeed if they give rise to a common intention constructive trust. This note looks at a case, Herbert v Doyle, in which the Court of Appeal had to consider whether the essential elements of the common intention constructive trust were present.

The rules governing the acquisition of beneficial interests in family homes have generated a great deal of academic literature since their restatement, and apparent clarification, by the House of Lords in Lloyds Bank plc v Rosset. In what has become an all too familiar passage, Lord Bridge outlined the two methods by which such an interest can be acquired in the absence of writing. For a claimant to succeed under the first of these (the only one with which this article will be concerned), the court must be satisfied that there has been: (a) an ‘agreement, arrangement or understanding’ between the claimant and the legal owner to share the beneficial interest, evidenced by oral discussions between them; and (b) that the claimant has acted to her detriment, or significantly altered her position, in reliance on the agreement. If these requirements are satisfied the claimant will obtain an interest, according to Lord Bridge, by way of constructive trust or proprietary estoppel.

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.

In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff . . . Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights . . . Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money, or in the other acts which he has done, either directly or by abstaining from asserting his legal right.5

The body of law in a State consists of two parts, substantive and adjective law. The former prescribes those rules of civil conduct which declare the rights and duties of all who are subject to the law. The latter relates to the remedial agencies and procedure by which rights are maintained, their invasion redressed, and the methods by which such results are accomplished in judicial tribunals. An Estoppel is a rule of evidence.An estoppel is a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true.It is a bar that prevents the re-litigation of issues.It is an affirmative defense alleging good-faith reliance on a misleading representation and an injury or detrimental change in position resulting from that reliance.“Estoppe” says Lord Coke, comes from the French word estoupe, from whence the English word Stopped; and it is called an estoppel or conclusion, because a man’s own act or acceptance stoppeth or closesth up his mouth to allege or plead the truth. Estoppel may also be defined to be a legal result of conclusion arising from an admission which has either been actually made, or which the law presumes to have been made, and which is binding on all persons whom it affects. In using the term estoppel, one is of course aware of its kaleidoscopic varieties. One reads of estoppel by conduct, by deed, by latches, by misrepresentation, by negligence, by silence and so on. There is also an estoppel by judgment and by verdict: there, however, obviously involve procedure. The first named varieties have certain aspects in common. But these aspects are not always interpreted by the same rules in all courts. The institution seems to be flexible. Kinds of EstoppelsEstoppels are many kinds, namely,• Administrative collateral estoppel.• Assignee estoppel.• Assignor estoppel.• Collateral estoppel.• Equitable estoppel.• Estoppel by conduct.• Estoppel by Contract.• Estoppel by deed.• Estoppel by election.• Estoppel by inaction• Estoppel by judgment.• Estoppel by latches.• Estoppel by misrepresentation.• Estoppel by negligence.• Estoppel by record.• Estoppel by representation.• Estoppel by silence.• Estoppel by standing by.• Estoppel by verdict.• Estoppel by warranty.• Estoppel in pais.• Estoppel on the record. • File wrapper estoppel.• Judicial estoppel.• Legal estoppel.• Marking estoppel.• Promissory estoppel.• Prosecution history estoppel.• Quasi estoppel.• Technical estoppel. There is also another kind of estoppel which is called the Proprietary Estoppel. In Re: Basham (dec’d) Mr. Edward Nugee (sitting as High Court judge) set out the principle of proprietary estoppel, in its broadest form, in the following terms:“Where one person, A, has acted to his detriment on the faith of a belief, which was known to and encouraged by another person. B, that either has or is going to be given a right in or over B property. B cannot insist on his strict legal rights if to do so would be in consistent with a belief.”

This note analyses the decision of the House of Lords in Thorner v. Major [2009] UKHL 18, where a proprietary estoppel claim was upheld in favor of a farmer who had worked without pay on his cousin’s farm on the basis of oblique assurances that he would inherit the property. The case appears to constitute a retreat from the restrictive approach to proprietary estoppel favored by the House of Lords in Yeoman’s Row Management Ltd v. Cobbe [2008] UKHL 55. Unfortunately, Lord Scott did not retract the views he had advanced in Cobbe and, in fact, made observations on the relationship between proprietary estoppel and the ‘remedial constructive trust’ which are likely to cause further problems in this area. The note addresses a range of issues arising from Thorner v. Major, including whether a promise is necessary to found a claim in proprietary estoppel, whether the claimant must believe such a promise to be binding, issues related to conditionality and certainty in respect of a proprietary estoppel representation, the possible distinction between commercial and ‘family’ cases, and the remedial issue.

In recent years both courts and scholars have embraced the idea that the notion of unconscionability has a role to play in determining the appropriate remedy in proprietary estoppel cases. This means that, in exercising the remedial discretion it exercises in giving effect to proprietary estoppel, a court should consider what remedy is required in the circumstances to assuage the conscience of the representor. If the fundamental concern of proprietary estoppel is to prevent or redress unconscionable conduct, then it stands to reason that the remedial discretion should be informed by a consideration of what the representor’s conscience, properly informed, would require. There are three different ways in which unconscionability might be taken into account in the framing of relief. First, the remedy could reflect the reprehensibility of the representor’s conduct (the ‘reprehensibility‘approach). On this view, the more reprehensible the conduct, the more extensive the remedy that is needed to correct the representor’s conscience. Second, the remedy could reflect the extent of the representor’s responsibility for the relying party’s predicament (the ‘extent of responsibility‘approach). Under this approach, the more significant the role played by the representor in inducing the relevant assumption and failing to correct it, the more extensive the remedy that will be required to prevent unconscionable conduct. Third, the exercise of the remedial discretion could involve a broad assessment of what relief, considering all circumstances ‘in the round’, is necessary to assuage the representor’s conscience (the ‘in the round‘approach).

When is a promise to benefit someone on one's death an enforceable promise? This was the question for the High Court in Gillett v. Holt and Another [1998] 3 All E.R. 917. As Carnwath J. recognised, the difficulty lies in reconciling proprietary estoppel with the principle that “[s]ubject to specific exceptions (such as for dependants), the right to decide, and change one's mind as to, the devolution of one's estate is a basic and well understood feature of English law”.

Introduction Part 1: Principle and Policy Private Right and Public Interest Stephen Waddams Part 2: Tort Law Policy Policy and Principle in Tort Law Peter Cane Taking Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law Harold Luntz The Use of Policy in Negligence Cases in the High Court of Australia Harold Luntz The High Court and Social Facts: A Negligence Case Study Kylie Burns Part 3: Issues in Contract Law Reconfiguring Mistake in Contract Formation David Capper The Standard of Good Faith Performance: Reasonable Expectations and Community Standards Jeannie Marie Paterson Some Thoughts on the Comparative Jurisprudence of Mistakes in Assumption Catherine Valcke Part 4: Certainty and Discretion in Property, Equity and Unjust Enrichment Estoppel, Discretion and the Nature of the Estoppel Equity Elizabeth Cooke Unconscionability, Constructive Trusts and Proprietary Estoppel Nicholas Hopkins Constructive Trusts from a Law and Economics Perspective Anthony Duggan The Criteria for the Award of Proprietary Remedies: Rethinking the Proprietary Base Michael Bryan Change of Position, Good Faith and Unconscionability Susan Barkehall Thomas

This considers the circumstances in which an easement by estoppel may take priority over a purchaser of the burdened land. It makes the point that such equitable easments are dififcult to fit into the land registration system, as evidenced by the discussion in Sweet v Sommer [2005] EWCA Civ 227; [2005] 2 All E.R. 64 (Note) (CA (Civ Div)).

An analysis of the concept of unconscionability in the law of proproetary estoppel and with reference to the Land Registration Act 2002

In recent years, one of the most vibrant doctrines has been that of equitable estoppel. This doctrine is generally seen as having two main branches: the defensive doctrine of promissory estoppell and the older and more aggressive doctrine of proprietary estoppel, which can itself be used to obtain rights: to be the cause of action itself. The aim of this article is to analyse the central concepts of equitable estoppel in order to distinguish it from its common law counterpart, to consider its relationship to the law of contract and also to present the two main branches as being closely related concepts, based on common underlying themes.