Unconscionability
Daniel Pitaluga.
“[On one view of proprietary estoppel] ‘unconscionaibility has no independent existence for it is defined purely in terms of three factual requirements. The corollary is, of course, that unconscionability exists by definition whenever there is an assurance, reliance and detriment, because non-performance of the assurance after the detriment will always be unconscionable. Such a view is at odds with those who view unconscionability as at the heart of the doctrine – in the sense of providing its underlying rationale – because, quite simply, it denies the concept of any discernable meaning.”
Critically analyse, explain and evaluate this statement in the light of recently decided case law and academic commentaries.
To asses and evaluate this statement it first has to be deconstructed and analyzed separately. Then the doctrine and history of proprietary estoppel must be looked at to gain a full understanding of both views the statement provides. Also the manner in which it is applied by the judiciary and the changes to its ideology that have made it what it is today.
Unconscionability is crucial element within proprietary estoppel and although it may govern the doctrine, its meaning, application and understanding varies and can appear somewhat vague. Only once unconscionability has been established may a judge look to “estopp” what has been deemed unconscionable. However there are two opposing views on the terms of unconscionability and the focus of this essay will be to address both views based on precedents from recent case law which determine when and how unconscionable behavior may allow a proprietary estoppel to arise.
The first view on proprietary estoppel and when it is established through unconscionablity is in Wilmott v Barker in the form of the five ‘probandas’. Two relate to the person seeking to raise the estoppel. He must have made a mistake as to his legal rights and must have spent money or done some other act in
“[On one view of proprietary estoppel] ‘unconscionaibility has no independent existence for it is defined purely in terms of three factual requirements. The corollary is, of course, that unconscionability exists by definition whenever there is an assurance, reliance and detriment, because non-performance of the assurance after the detriment will always be unconscionable. Such a view is at odds with those who view unconscionability as at the heart of the doctrine – in the sense of providing its underlying rationale – because, quite simply, it denies the concept of any discernable meaning.”
Critically analyse, explain and evaluate this statement in the light of recently decided case law and academic commentaries.
To asses and evaluate this statement it first has to be deconstructed and analyzed separately. Then the doctrine and history of proprietary estoppel must be looked at to gain a full understanding of both views the statement provides. Also the manner in which it is applied by the judiciary and the changes to its ideology that have made it what it is today.
Unconscionability is crucial element within proprietary estoppel and although it may govern the doctrine, its meaning, application and understanding varies and can appear somewhat vague. Only once unconscionability has been established may a judge look to “estopp” what has been deemed unconscionable. However there are two opposing views on the terms of unconscionability and the focus of this essay will be to address both views based on precedents from recent case law which determine when and how unconscionable behavior may allow a proprietary estoppel to arise.
The first view on proprietary estoppel and when it is established through unconscionablity is in Wilmott v Barker in the form of the five ‘probandas’. Two relate to the person seeking to raise the estoppel. He must have made a mistake as to his legal rights and must have spent money or done some other act in
Bibliography: Land Law, Cases and Materials, 8th edition. E. H. Burn Penelope Reed (2010) Martin Dixon (2000). “Estoppel, unconscionability and formailites in Land Law” Cambridge Law Journal. 453-455 Ben Macfarlane, Andrew Robertson (2009) [ 4 ]. Cobbe v Yeoman 's Row Management Ltd [2008] 1 W.L.R. 1752 [ 5 ] [ 6 ]. Cobbe v Yeoman 's Row Management Ltd [2008] 1 W.L.R. 1752 Lord Walker 92 [ 7 ] [ 18 ]. Penelope Reed (2010) 49 [ 19 ]