Contract Lecture Nine 13/11/18 Promissory Estoppel 8. Ingredients for establishing promissory estoppel. (a) Pre-exiting legal relationship; only in this context can promissory estoppel have any meaning; in most instances this relationship is contractual in nature (b) Clear and unambiguous promise/representation by the person who is relaxing an existing obligation (c) Promisee/representee to whom the promise was made has to have relied on the promise/representation; and (d) Resiling from the promise/representation would be inequitable. 9. Pre-existing legal relationship Combe v Combe [1951] 2 KB 215 => promissory estoppel is 'a shield not a sword'. Denning J said: "[Promissory estoppel] does not create new causes of action where none existed before. It only prevents a party from insisting upon his strict legal rights, when it would be unjust to allow him to enforce them, having regard to the dealings which have taken place between the parties ... It is also implicit in all the modern cases in which the principle has been developed ... " Contrast, however, the Australian ruling of Walton Stores v Maher (1988) 164 CLR 387 "If a promise by A not to enforce an existing right against B is to confer an equitable right on B to compel fulfilment of the promise, why should B be denied the same protection in similar circumstances if the promise is intended to create in B a new legal right against A?" (per Brennan J). Baird Textiles Holdings Ltd v Marks and Spencer plc [2001] EWCA Civ 274 Generally speaking, there are 4 requirements that must be satisfied for promissory estoppel; overlap between 3rd/4th requirements - promissory estoppel can only act as a shield as opposed to a sword; it cannot be deployed in order to bring proceedings 10. Clear and unambiguous promise/representation Woodhouse v Nigerian Cocoa [1972] AC 741 Seller represented to seller: "I write to confirm that payment made to be made in sterling and in Lagos". "Counsel for the appellants was asked whether he knew of any case in which an ambiguous statement had ever formed the basis of a purely promissory estoppel, as contended for here, as distinct from estoppel of a more familiar type based on factual misrepresentation. He candidly replied that he did not. I do not find this surprising ... There seem to me to be so many and such conclusive reasons for dismissing this appeal that it may be thought a work of supererogation to add yet another ... ... I desire to add that the time may soon come when the whole sequence of cases based on promissory estoppel since the war, beginning with [High Trees], may need to be reviewed and reduced to a coherent body of doctrine by the courts." (per Lord Hailsham) Baird Textiles Holdings Ltd v Marks and Spencer plc [2001] EWCA Civ 274
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