1. It should be noted however that there is on-going activity in Australia. As recently as 1983, the High Court of Australia recognised the doctrine in Legione v Hateley (1983) 152 CLR 406,46 Aust LR 1. See also Walton's Stores (Interstate) Ltd v Maher (1988) 62 ALJR, HC; (1986) 5 NSWLR 407, CA; State Rail Authority (NSW) v Heath Outdoor Pty Ltd, 3 Dec 1986, CA No 4/85 ED No 3819/83; Bonds Brewing v Reffell Party Ice Supplies Pty Ltd, 17 Aug 1987 ed No 4312/86, SC. Equally, the Supreme Court of Canada has given superficial consideration to promissory estoppel in several recent decisions: Fort Frances v Boise Cascade Canada Ltd (1983) SCR 171;Engineered Homes v Mason (1983) 1 SCR 641; Scotsburn Co-operative Services v W. T. Goodwin (1985) 1 SCR 54; V. K. Mason Ltd v Bank of Nova Scotia (1985) 1 SCR 271. In the UK there have been several promissory estoppel-type cases which have been decided under a generalised rubric of equitable estoppel’: Scandinavian Trading Tanker AB v Flota Petrolera Ecutoriana, The Scraptrade (1983) 2 AC 694, 2 All ER 763; Societe Italo-Belge pour le Commerce et L'Industrie v Palm and Vegetable Oils (Malaysia) Sdn Bhd (1982) 1 All ER 19; Telfair Shipping Corp v Athos Shipping Co SA (1983) I Lloyd's Rep 127; cp China Pacific SA v Food Corporation of India (1981) QB 403. The most notable feature of these cases is that the estoppel plea generally was unsuccessful.

2. Onward Building Society v Smithson (1893) 1 Ch 1 at 14, per Bowen LJ.

3. The previous major English decision appears to have been Greer v Kettle (1938) AC 156, HL. In Australia, reference was made to the doctrine in Great v Great Boulder Gold Mines Ltd (1937) 59 CLR 641. At any time in its history, the doctrine appears to have enjoyed only spasmodic use until the concentration of cases in the past five years.

4. D. M. J. Bennett, ‘Equitable Estoppel and Related Estoppels’. (1987) 61 Aust LJ 540. This may hold true only for counsel in the UK, Australia and New Zealand. Canadian counsel do not appear to have explored the potential as yet, and, indeed may have developed other approaches.

5. See eg P. S. Atiyah, ‘Contract and Fair Exchange’ (1985) 35 v Tor LJ 1; P. Finn, ‘Equitable Estoppel’ in Essays in Equity, P. Finn (ed) (1985).

6. Reed v Sheehan (1982) 56 FLR 206, 39 Aust LR 257 at 269 per Fox J, dissenting in the result. In this he updated the comments of Jordan CJ in Ferrier v stewart (1912) 15 CLR 32 at 82: ‘estoppel by representation tends to overshadow the more ancient and equally fundamental forms of estoppel… there is some tendency to use the representation type of estoppel as a bed of Procrustes and to endeavour to express all types of estoppel in pais in terms of estoppel by representation – a tendency which is apt to lead to some confusion, if not of thought, at any rate of expression.’ See also Macrossan J in Riches v Hogben (1986) 1 Qd R 315 at 327: ‘the fact that the equitable principle seems not to be uniformly referred to by the same name appears to have the incidental effect that arguments about its application in a particular case often result in a wide citation of authority.’ Fox J continued in Reed v Sheehan, op cit: ‘[the] terms are badly in need of coherent and orderly arrangement. This will only flow from the determination of a more generic rule or rules, based on the fundamental concept.’ Cp Woodhouse A C Israel Cocoa Ltd v Nigerian Produce Marketing Co. Ltd (1972) AC 741;Amalgamated Investment Property Co Ltd v Texas Commerce Bank (1982) QB at 109, CA, at 122, per Lord Denning MR.

7. The Scraptrade, op cit, n 1, at 308. In the result, the equity of relief against forfeiture was rejected in commercial settings.

8. Although some may not welcome this latest innovation. See eg Atiyah, ‘Contracts and Fair Exchange’ op cit n 5 at 9. In a related context, he commented: ‘unfortunately, the extreme reluctance of the courts to acknowledge openly that they are trying to ensure that a contract operates as a fair exchange means that the conceptual analysis of the law is highly complex and often obscures what is going on.’ One of the implications of my argument is that estoppels, including estoppel by convention, would no longer be necessary if the underlying movements in contract law are identified and addressed directly.

9. The whole concept of unconscionability remains largely ill-defined in the cases. It is open-textured in definition and application, indeed, precise definition is seen as being undesirable: Taylors Fashion Ltd v Liverpool and Victoria Trustee Co (1982) 1 QB 133 at 148; Reed v Sheehan op cit n 6, at 276; Carey v Carey A 1184/82 (High Court, Auckland, NZ, 25 June 1984, per Henry J). Cp National Westminter Bank plc v Morgan (1985) AC 686; 1 All ER 821, at 828 per Lord Scarman; E. R. Ives Investments Ltd v High (1967) 2 QB 379; R. D. Mul-holland, ‘From Acquiescence to Expectation: The Ramsden v Dyson Principle Today’ (unpublished LLM Thesis, Univ of Canterbury, NZ, 1984) at 87 et seq. It is by no means self-evident what it means to have a rule ‘by which justice is done’, or when a situation is ‘inequitable’. Little more seems to be required than that the claimant's conduct has been influenced by the assumption and by the mutual conduct of the person sought to be estopped.

10. P. S. Atiyah, Rise and Fall of Freedom of Contract (1979) at 676: ‘The development of promissory or equitable estoppel [are not evidence] of a resurgence of equitable principles. These developments are an illustration of the ordinary movement of the common law. There has been no suggestion that the results should be dictated by discretion rather than fixed rule, nor has there been any suggestion that the courts are arrogating to themselves a jurisdiction to override express contractual terms. Indeed there is some ground for thinking that the modern developments are in truth more in line with common law thinking - which gave complete precedence to contractual intent - and less with equitable principles which are concerned with the fairness of the exchange’.

11. P. Finn, ‘Equitable Estoppel’ in Essays in Equity, P. Finn (ed) (1985); Bennett, opcitn 4, at 541.

12. ‘“to presentiate: to make or render present in place or time; to cause to be perceived or realised as present”… Presentiation is thus a recognition that the course of the future has for many purposes been brought effectively into the present.’ See I. MacNeil, ‘Restater.’ it (Second) of Contracts and Presentiation’ (1974) 60 Virg L Rev 589 at 589 (footnote omitted).

13. See eg D. Farber and J. Matheson, ‘Beyond Promissory Estoppel: Contract Law and the “Invisible Handshake”’ (1985) 52 v Chic LR 903 at 927. Hugh Collins, The Law of Contract (1986) at 38–39, makes a distinction between discrete and relational contractual behaviour when he asserts: ‘the exchange model imagines a market full of independent traders, who make isolated purposive exchanges … modern economic transactions, however, assume forms of complex association between a number of parties, which cannot always be described as exchanges.’ Cp. I. MacNeil, ‘Barriers to the Idea of Relational Contracts’ in The Complex Long-Tern Contract, Nicklisch, Fritz (ed) (1987) 31 at 34: ‘this then is the real world of production, distribution, and use of material wealth. It is a world of relations in which reciprocity is ever present, but truly discrete exchange never is, and relatively discrete exchange only sometimes. Above all, the relatively discrete exchanges, like exclamation points in a text, are always melded with the more subtle patterns of exchange in relations. And everything is entwined with solidarity.’.

14. A ‘category of illusory reference’ was defined by Julius Stone, Precedent and Law (1985), at 61 as: ‘certain patterned features of legal materials … which whenever we find them, signal that leeways exist for choice by courts which seek to use them as a basis of decision … we mean by “leeways” areas in which not logic, nor law, nor language compels the court to any one decision as being the only correct one.’ As such, these categories enable the courts to ‘act in a creative manner while at the same time adhering to the structure of our system of precedent.’ These ideas were also developed in Leagal System and Lawyer's Reasoning (1964). See also J. Stone, ‘From Principles to Principles’ (1981) 97 LQR 224.

15. M. Neave and M. Weinberg, ‘The Nature and Function of Equities’ (1978) 6U Tas L Rev 24 and 115.

16. See I. MacNeil, ‘Contracts: Adjustment of Long-Term Economic Relations under Classical, Neo-classical and Relational Contract Law’ (1978) 72 Nw ULR 854 at 870: ‘the present neo-classical system permits a great deal of flexibility and gap-filling.’ Examples include common law development of duress, non est factum, frustration, impossibility and mistake. In equity, doctrines such as undue influence, and a nascent inequality of bargaining power, or unconscionability have been discussed; rectification of documents in equity could relieve a party from terms which did not express the agreement of the parties. Of course, several sets of material relations have not even been woven into it at all, for example family and fiduciary relations and increasingly, employment relations.

17. See J. Manwaring, ‘Promissory Estoppel in the Supreme Court of Canada’ (1987) 10 Dalhousie LJ 43; T. B. Dawson, Estoppel and Obligation (Unpublished LLM thesis, Osgoode Hall Law School, Canada 1987).

18. Stone, op cit n 14, at 61. Cp Lord Denning MR, in Amalgamated Investment Proper 9 Co Ltd v Texas Commercial Bank (1982) 1 QB 82 at 120: ‘under the guise of estoppel we can prevent either party from going back on the interpretation they themselves gave to it’.

19. Finn, op cit n 11.

20. See eg, Chitty on Contracts (25th edn, 1983) at 1.

21. ‘The law of contracts may justly indeed be said to be a universal law, adapted to all times and races, and all places and circumstances, being founded upon those great principles of right and wrong deduced from natural reason which are immutable and eternal’: Addison, ‘Introduction’, Treatise on the Law of Contracts (1847).

22. Hugh Collins, The Law of Contract (1986) at 8.

23. Contrast with I. MacNeil, The New Social Contract (1980) at 5: ‘if we wish to understand contract, and indeed if we wish to understand contract law, we must think about exchange … first and law second’.

24. Ian MacNeil, ‘Barriers to the Idea of Relational Contracts’ in The Complex Long-Tern Contract Niklisch, Fritz (ed) (1987) at 35.

25. Familiar as the ‘congruent will’ theory. See a recent restatement and endorsement of this by G. Muir, ‘Contract and Equity: Striking a Balance’ (1985) 10 Adelaide L Rev 153 at 154. This was thought to be an objective test: Smith v Hughes (1871) LR 6 QB 597 G. C. Christie, ‘Objectivity in the Law’ (1968–9) 78 Yale LR 1311; W. Howarth, ‘The Meaning of Objectivity in Contract’ (1984) 100 LQR 265; J. P. Vorster, ‘A Comment on the Meaning of Objectivity in Contract’ (1987) 103 LQR 274; D. Goddard, ‘The Myth of Subjectivity’(1987) 7 LS 263.

26. See eg B. Reiter, ‘Courts, Contracts and Common Sense’ (1977) 27 U Tor LJ 439 at 444. He proposed that ‘academic formulations’ of consideration be abandoned in favour of functional judicial definitions which allow enforcement ‘in the absence of sufficiently good reason not to enforce a promise. What is a sufficiently good reason must be determined in light of interests and policy factors present, relevant and valued differently in various fact situations. Consideration … represents an evolving notion of the types of situation in which the absence-of-good-reason-not-to-enforce has been found’.

27. In apparent acceptance of this theory, Muir summarised the position thus: ‘non-agreement promises [are] enforced only if executed … [but] the liability is delictual.’ Muir, op cit n 25, at 255.

28. See discussion of I. D. Campbell, ‘Gratuitous Waiver of Contractual Obligations’ (1964) 1 NZULR 232. See also S. Alward, ‘Equitable Estoppel’ (1898) Can LT 181; Ibid, ‘A New Phase of Equitable Estoppel’ (1905) 19 Ham L Rev 113.

29. Eg Mullun v May (1844) 13 M & W 511 at 517.

30. Eg Robertson v French (1803) 4 East 130 at 135.

31. Thus, matters discussed in prior negotiations or prior drafts of written agreements could not be considered by a judge in construing a contract. See eg Goss v Lord Nugent (1833) 5 B & A 58 at 64; D. W. McLaughlin, ‘The Admissibility of Parol Evidence to Interpret Written Contracts’ (1974–5) 6 NZULR 121.

32. James Miller and Partners Ltd v Whitworth Street Estates (Manchester) Ltd (1970) AC 572 at 603.

33. See CN v CPR (1978) 2 WWR 267, (1979) 1 WWR 358, BCCA; Turvey v Laudier (1956) 4 DLR (2d) 225; Leitch Gold Mines Ltd v Texas Gulf Sulphur (1969) 1 OR 469; cf Northwestern Mechanical Installations v Yukon Construction (1982) 136 DLR(3d) 685; AG of Newfoundland v Churchill Falls (Labrador) Corporation (1983) 49 Nfld & PEIR 181.

34. Although there was always a practical diversity of contractual interests judicially protected. Generally, L. Fuller and W. Perdue, ‘The Reliance Interest in Contract Damages’ (1936–7) 46 Yale LJ 52 and 373, at 418: ‘the cases discussed show … that the contractual reliance interest receives a much wider (though often covert) recognition in the decisions than it does in the textbooks’.

35. See Goodhart and Jones, Specific Performance (1986); R. Sharpe, Injunctions and Spec & Performance (1983); and R. Jukier, ‘The Emergence of Specific Performance as a Major Remedy in Quebec Law’ (1987) 47 Reveue du Barreau 47. It is significant to note that a major opening up in the law of specific performance is occurring contemporaneously with estoppel developments.

36. See further S. Macaulay, ‘Non-Contractual Relationships in Business’ (1963) 28 Am SOC Rev 55; ‘The Use and Non Use of Contracts in the Manufacturing Industry’ (1963) Prac Law (Nov) 13; ‘Elegant Models’ (1977) II Law & SOC Rev 507; ‘An Empirical View of Contract’ (1985) Wise L Rev 565.

37. I. MacNeil, ‘The Many Futures of contract’ (1974) 47 So Cal L Rev 691 at 815; Social Contract, op cit n 23, at 4.

38. J. H. Baker, ‘From Sanctity of Contract to Reasonable Expectation’ [1979) CLP 17 at 21.

39. M. P. Thompson, ‘From Representation to Expectation: Estoppel as a Cause of Action’ [1983) Camb LJ 257; R. D. Mulholland, ‘From Acquiescence to Expectation: the Ramdsden v Dyson Principle Today’ (unpublished LLM Thesis, Univ of Canterbury, NZ, 1984); R. D. Oughten, ‘Proprietary Estoppel: A Principled Remedy’ 129 New LJ 1193.

40. Muir, op cit n 25, at 256.

41. Finn, op cit n 11.

42. K. Nicholson, ‘Riches v Hogben: Part Performance and the Doctrines of Equitable and Proprietary Estoppel’ (1986) 60 Aust LJ 345 at 348. See also K. Lindgren and K. Nicholson, ‘Promissory Estoppel in Australia’ (1984) 58 Aust LJ 249.

43. [1976) 1 ChD 179.

44. (1981) 41 P & C Reps 179.

45. See also Waltons Stores (Interstate) Ltd v Maher, op cit n 1.

46. It should be noted that in neither case was the exercise of a statutory power or discretion at issue.

47. Op cit n44 at 195.

48. This case stirred debate similar to the terms of the present analysis, between Professor Patrick Atiyah and P. J. Millet QC. P. S. Atiyah, ‘When is an Enforceable Agreement Not a Contract? Answer: When it is an Equity’ (1976) 92 LQR 174, urged that the case should indeed be understood as one concerned with the enforcement of contracts. To this Millet replied, in ‘Crabb v Arun District Council – A Riposte’ (1976) 92 LQR 342 at 346, that the only ground available to the plaintiff had been estoppel and that the ‘full implications of the decision [would] be missed if the absence of a contract remedy is not understood and the difference between claims in contract and estoppel not appreciated.”

49. Where the agreement is not well established or is negated on the facts, no estoppel (as indeed no contract) can be founded. See Lokumal (K.) and Sons (London) Ltd v Lotte Shipping Co Pte Ltd The August Leonhardt (1984) 1 Lloyd's Rep 322, QB, (1985) 2 Lloyd's Rep 28, CA; Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd (1987) AC 114.

50. See eg Amalgamated Investment Property Co Ltd (in liq) v Texas Commerce Bank, op cit n 18. Referred to throughout as Amalgamated Property; Coghlan v S. H. Lock Ltd (1985) 4 SWLR 158. CA: (1987) 8 NSWLR 88. PC.

51. Op cit n 18:.

52. Op cit n 50.

53. See also Sarat Chunder Dey v Gopal Chunder Laha, 19 LR Ind App 203; Di Lione v Turco (1982) Qd R 224, FC; Coupe v J. M. Coupe Ltd (1981) 1 NZLR 275.

54. (1986) 277 EG 1134, CA.

55. Although it must be noted that the written lease was held to regulate the prospective relationship of the parties. Presumably, the relationship would and should indeed have been open to renegotiation at that point. See also Westland Savings Bank v Hancock (1987) 2 NZLR 21, HC.

56. [1982) 1 QB 133.

57. Ibid. Old's Ltd had a second lease for a term of 42 years with a break clause at 28 years in the event of non-exercise by Taylors Fashions of their ‘right’ to renew. Thus, all the leases were co-ordinated.

58. The first plaintiffs were unsuccessful, it being held that their actions were taken without reference to future renewal of the lease using the option.

59. Riches v Hogben (1982) 1 Qd R 315.

60. Nicholson, op cit n 42, at 347.

61. Op cit n 18.

62. Op cit n 18, at 120. The other members of the court avoided explicit reference to this feature of the case.

63. Buckland v Commissioner for Stamp Duties (1954) NZLR 1194, at 1204. Cf Goodridge J in Attorney General for Newfoundland v Churchill Falls (Labrador) Corporation (1983) 49 Nfld & PEIR 181, at para 289, where he referred to cases in which subsequent acts of the parties have been admitted as evidence of proper interpretation of the contract as ‘nothing more than thinly disguised cases of estoppel’. Note also dissents in Coupe v J. M. Coupe Ltd, op cit n53 (Richardson J); Scolsburn Co-op Services v W. T. Goodwin Ltd (1985) 1 SCR 54 (Estey J); McCathie v McCathie (1971) NZLR 58 (North J).

64. Op cit n 18.

65. Ibid, at 94.

66. Ibid.

67. See also Bergerco USA v Vegoil Ltd (1984) 1 Lloyd's Rep 440. Cf Prenn v Simmonds (1971) 1 WLR 1381, 3 All ER 237 at 241, per L Wilberforce: ‘evidence should be limited to evidence of factual background known to the parties at or before the date of the contract, including evidence of the genesis and objectively of the ‘aim’ of the transaction’.

68. Op cit n 50.

69. MacNeil, ‘Futures’ op cit n 37, at 815.

70. MacNeil, ibid, at 66.

71. MacNeil, Social Contract, op cit n 23.

72. See generally I. Duncanson, ‘Note – Plea for a New Law of Contract’ 125 New LJ 544; R. Gordon, ‘Macaulay, MacNeil and the Discovery of Solidarity and Power in Contract Law’ (1985) Wisc L Rev 565, at 574; R. Cotterell, The Sociology of Low 1984) 120–132. MacNeil argues in ‘The Many Futures of Contract’ (1974) 47 So Cal L Rev 691 at 741–2, that claims of neutrality are spurious when bias is built into the nature of the legal tools used. He argues that in our socio-economic structure, contract rules are the rules which create explicit and monetarised rights.

73. MacNeil, ‘Adjustment’, op cit n 16, at 898 and n 137.

74. Farber and Matheson, op cit n 13, at 929.

75. Spencer Bower and Turner, Estoppel by Representation, 3rd edn (1977) at para 157. Traditional examples include tenancies where a tenant, who entered into possession knowing of a defect in the landlord's title, is estopped from subsequently setting up this defect to resist the enforcement of some right arising in the lease. eg Morton v Wood(1869) LR 4 QB 293; Ferrier v Stcwart (1912)15CLR32; Rodenhurst Estates Ltd v Barnes (1936) WN 154; 2 All ER 3; National Westminster Bank v Hart (1983) QB 773, CA. In Clarke v Sheehan (1967) NZLR 1038, the parties had agreed to conceal a payment for business goodwill by applying it to the deposit on a related sale. The deal went sour and this sale fell through and one party sued for a ‘return of the deposit paid’. The estoppel by convention prevented a denial that the deposit money had been received.

76. Eg Franklin v Manufacturers Mutual Insurance Ltd (1935) 36 SR NSW 76 at 81 per Jordan CJ.

77. Most recently see Westland Savings Bank v Hancock (1987) 2 NZLR 21. Also, Onward Building Society v Smithson, op cit n 2; Simms v Anglo-American Telegraph Co (1879) 5 QBD 188; Thompson v Palmer (1933) 49 CLR 507, 547; Dabbs v Seaman (1925) 36 CLR 538 at 550 per Isaacs J: ‘This is a rule of law, not of equity. Unless by reason of some recognised head of equity jurisprudence, such as for instance mutual mistake, the instruments were rectified, the claim to put aside the agreement must have been disallowed.’.

78. Cp the dissenting judgment of Higgins J in Dabbs v Seaman, ibid, at 565: ‘It becomes amazing to find the question of estoppel being even seriously raised.’ His concept of estoppel was limited to estoppel by representation. The case concerned an agreed right of way which did not appear on the registered title. See also General Finance, Mortgage and Discount Co Ltd v Liberator Permanent Building Society (1878) 10 Ch D 15, CA, per Jessel MR. He argued that estoppel by deed was no longer necessary in law after the systemisation of contract law and commented, at 20: ‘the whole doctrine of estoppel of this kind, which is a fictitious statement treated as true, might have been founded upon reason, but I am not sure that it was. There is another kind, estoppel by representation, which is founded upon reason and decision.’.

79. See Discount and Finance Ltd v Gehrig's NSW Wines Ltd (1940) 40 SR (NSW) 598, SC.

80. (1922) 31 CLR27.

81. See also Verschures Creamies Ltd v Hull and Netherlands Steamship Co Ltd (1921) 2 KB 608 at 612: ‘A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he would only be entitled on the footing that it is valid, and then turn around and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction’.

82. See I. D. Campbell, ‘Gratuitous Waiver of contractual Obligations’ (1964) 1 NZULR 232; Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (2nd edn, 1984) at para 1723 et seq; Petridis v Shabinsky (1982) 35 OR (2d) 215.

83. Spencer Bower and Turner, op cit n 75, at para 172. Cf The Digest which collects the authorities under the heading of ‘Estoppel by Deed’: V 21, Pt 111, paras 823 et seq.

84. Op cit n 75, at para 157.

85. Onward Building Society v Smithon, op cit n 2.

86. Spencer Bower and Turner, op cit n 75, at para 165. In some circumstances the assumption could be interwoven with the express terms of the contract. For example, if a bill of lading were to be issued for goods, it would contain the inherent assumption that the goods referred to were on board when the bill was issued: Associated Packaging Po Ltd v Sankyo Kauiun Kabushiki Kaisha (1983) 3 NSWLR 293; Lishman v Christie (1987) 19 QBD 333. Equally if shares in a company are transferred, their validity is assumed through the very contract. See Hull Flax (1860) 6 H & N 38, 158 ER 16, per Martin B: ‘Here there is no practical difference between contract and estoppel’. This was referred to with approval in Coupe v J. M. Coupe Ltd, op cit n 53.

87. Bowman v Taylor (1834) 2 Ad & El 278, 111 ER 108; Greer v Kettle, op citn 3.

88. Ibid, Greer.

89. Burkinshaw v Nicholls (1878) 3 App Cas 1004.

90. RePilet, ex p Toursier and Berkeley (1915) 3 KB 519.Cf Hexagon v Australian Broadcasting Corp (1975) 7 Aust LR 233.

91. General Finance, Mortgage and Discount Co Ltd v Liberator Permanent Building Society (1878) 10 ChD 15.

92. Spencer Bower and Turner, op cit n 75, at para 166.

93. (1986) 160 CLR 226, 16 Aust LJR 294.

94. Ibid, at 300; 491. This statement has been rejected as per incuriam by the NSW Court of Appeal in Eslea Holdings PQ Ltd v Butts (1986) 6 NSWLR 175. For limited discussion of this controversy see Bennett, op cit n 4, at 549–550.

95. There is limited authority which suggests that parties to an extant contract could make an assumption as to its effect and act in accordance with this assumption. The estoppel which arose in such a case, did not alter the meaning of the contract, but simply protected the party claiming the estoppel from the legal consequences of those actions, until judicial determination of its ‘true’ meaning: Grundt v Great Boulder Gold Mines Ltd (1937) 59 CLR 641, at 673 et seq.

96. Spencer Bower and Turner, op cit n 75, at para 163; Booke v Haymes (1868) LR6 Eq 25.

97. Op cit n 3.

98. Ibid, see esp L Maugham at 171–2.

99. Ferrier v Stewart (1912) 15 CLR 32 at 44–45: ‘The estoppel is to be regarded from the standpoint of the person who acted upon the assumption, upon which the other intended he should act’.

100. Grundt, op cit n 95, at 673 et seq.

101. Jackson v Cator (1800) 5 Ves Jun 688; 31 ER 806. Parties entered a lease which provided that the landlord would have the right to cut timber on the land. The landlord had made a prior statement that he would not cut the timber and that the lease was to be executed in the form in which it was, to allow uniformity with his other leases. Thus, the parties were making an assumption about future conduct, not the effect of the transaction. The landlord subsequently moved to cut the timber. An estoppel by convention was soundly rejected, although an estoppel by representation was allowed.

102. Spencer Bower and Turner, op cit, n 75, at para 167.

103. (1841) 8 M & W 209, 212, 151 ER 1013.

104. Dabbs v Seaman, op cit, n 77, at 54&9; approved in McCathie v McCathie (1971) NZLR 58.

105. These include: England: Taylors Fashions Ltd v Liverpool and Victoria Trustees Co, op cit n 56 QB; Amalgamated Investment Property Co Ltd v Texas Commerce Bank, op cit n 18 CA; Lokumal (K.) and sons (London) Ltd v Lotte Shipping Co Pte Ltd, The August Leonhardt, op cit n 49; Keen v Holland (1984) 1 WLR251 (CA); Troop v Gibson, op cit n 54; Government of Swaziland Central Transport Administration v Leila Maritime Ltd, The Lila (1983) 2 Lloyd's Rep 172 (referred to throughout as ‘The Leila’); Pacol v Trade Lines, The Henrik Sif(1982) 1 Lloyd's Rep 456; Heinrich Hanno & Co BV v Fairlight Shipping Co Ltd The Kostas K (1985) 1 Lloyd's Rep 23, QB; Atlantic Lines & Navigation Co Inc v Hallam Ltd, The Lucy (1983) 1 Lloyd's Rep 188, QB; Multon v Cordell (1985) 277 EG 189, QB: MacGregor Navine OK Ltd v British RR Board (1985) FT 6 Nov, QB; Kenya Railways v Antares Co Pte Lid (1986) 2 Lloyd's Rep 633, QB; cp Central Street Properties v Mansbrook & Rudd & Co Ltd (1985) 279 EG 414. Australia: Coghlan v Lock, op cit n 50; Eslea Holdings Pty Ltd v Butts, op cit n 94; Off-shore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337, SC: Associated Packaging Pg Ltd v Sankyo Kaiun Kabushiki Kaisha, op cit n 86; Con-Stan Industries of Aust Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd, op cit n 93; Hexagon Pty Ltd v Australian Broadcasting Corporaton, op cit n 90; cp Riches v Hogben, op cit n 6; Waltons Stores (Interstate) Ltd v Maher, op cit n 1; Canada: Ontario Medical Association and Workers Compensation Board (1985) 52 OR (2d) 617, HC. New Zealand: Coupe v J. M. Coupe, op cit n 53. Cp Westland Savings Bank v Hancock, op cit n 77. See also Denis Vuaran, ‘The Resurgence of Estoppel by Convention’ (1987) 3 CLQ 17; D. M. J. Bennett, Equitable Estoppel and Related Estoppels’ (1987) 61 Aust LJ 540.

106. Op cit, n 56.

107. Ibid, at 159.

108. ibid, at 155. It should be noted that the assumption was not that the option had been registered (a matter of fact) but that it did not need to be registered (a conclusion of law). See infra.

109. Op cit, n 18.

110. Ibid, at 102. The analysis op cit suggests that the judge may have been quite correct in this finding if the traditional elements of estoppel by convention were to be applied.

111. Lord Denning certainly had this in mind when he commented in Amalgamated Property, op cit, n 18, at 122: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases … It has evolved in the last 150 years in a series of separate developments: proprietary estoppel, estoppel by representation, estoppel by acquiescence and promissory estoppel. At the same time it has been sought to be limited by a series of maxims … all these can now be seen to merge into one general principle shorn of limitations.’.

112. See Bennett, op cit n 4, at 551.

113. See argument in Taylors Fashions Ltd, op cit n 56, at 145.

114. This seems a little more current than earlier metaphorical references to ‘palm tree justice’.

115. (1877) 2 App Cas 439.

116. (1888) 40 Ch 268.

117. To date, all the cases have considered commercial situations. It may be speculated that domestic or family situations, which are generally less formal than the classical contract, have given classical, discrete legal models the same kind of problems as confronted in the estoppel by convention cases. However, it seems that constructive trusts and ‘equities of expectation’ are being utilised in such situations with much the same purpose. Proprietary estoppels and equitable estoppels are still ubiquitous in these areas. See eg Grant v Edwards (1986) Ch 638. See also Andrews v CML (1982) 2 NZLR 556, HC; Dabbs v Seaman, op cit n 77; Murgatroyd v J. N. Eliot Co (Farms) Ltd(1980) 1 NZCPR 225, rev'd CA52/82, September 1984 – on appeal to Privy Council. A number of other decisions concerning failure to make wills as promised or dealings with property inconsistent with agreements include: Re Basham (1987) 1 WLR 1498; Riches v Hogben, op cit n 59; Inwards v Baker (1965) 2 QB 29; Beech v Beech (1983) 1 NZCPR 454; Greasley v Cook (1980) I WLR 1306; Pascoe v Turner (1979) 1 WLR 431. It is perhaps no coincidence that these are primarily family situations where legal form is less likely than in commercial dealings. The principle however extends into commercial dealings and to all forms of property, including contractual rights: Habib Bank Ltd v Habib Bank AG Zurich (1981) 1 WLR 1265. As such, a consistency in concepts of obligation, in advance of consistent legal formulation of them, may be occurring. More work needs to be done on such inter-relations of legal models and responses.

118. Troop v Gibson, op cit n 54, at 1143 per Purchas LJ; cp Coghlan v Lock, op cit n 50 at 166.

119. Op cit n 18.

120. Op cit n 4, at 549–550.

121. Amalgamated Property, op cit n 18, at 99.

122. See Coghlan v lock, op cit n 50; The Leila (1983) 2 Lloyd's Rep 172; Eslea Holdings v Butts, op cit n 94. Arguably, in Troop v Gibson, op cit n 54, the assumption that the agricultural tenancy was oral rather than written also referred to matters of law not fact. Also cp Multon v Cordell, op cit n 105: assumption about appropriate time for the exercise of an option; Ontario Medical Association and the Workers Compensation Board, op cit n 105; assumption as to legal capacity to enter agreement; Hexagon Pty Ltd v ABC, op cit n 90: assumption as to future conduct accepted as being capable of constituting the conventional basis upon which the parties acted.

123. Op cit, n 94.

124. Ibid, at 188–189. In this he disassociated himself from obiter comments made by the High Court of Australia in Con-Stan Industries v Notwich Winterthur, op cit n 93, at 300.

125. Most clearly in Amalgamated Property, op cit n 18, per Goff J and in Eslta Holdings, op cit n94, at 183.

126. This can be analogised to the so-called ‘duty to speak’ cases collected in Taylors Fashions Ltd, op cit n 56. See also Laws Holdings v Short (1972) 46 Aust LJR 563. There are some interesting connections to a duty arising from negligence: Moorgate Mercantile Co Ltd v Twitchings (1977) AC 890, HL; (1976) QB 225; West v Dillicar (1920) NZLR 139.

127. Op cit n 49. See also Amalgamated Property, op cit n 18, at 129 per Brandon LJ.

128. Ibid, The August Leonhardt at 34.

129. Cp The August Leonhardt (1984) I Lloyd's Rep 322, QB (Bingham J); this element is shared with equitable/promissory estoppel which derived a promise or representation from whether ‘a reasonable man in the shoes of the charterers would have inferred from the owners conduct that they were making such a representation.’ The Scraptrade, op cit n 1, at 304, per Goff LJ. What is reasonable will of course differ from judge to judge.

130. Farber and Matheson, op cit n 13, at 917 et seq. Equally, the vested interests of third parties would be outside the scope of the parties. Associated Packaging v Sunkyo, op cit n 86. They must make the assumption themselves, where an error has been made by a third party, generally a solicitor, the estoppel has not been allowed. Presumably, an action lies against the solicitor for breach of contract or negligence. See eg, Gillis v Bougard (1983) 145 DLR (3d) 570; Van den Berg v Giles (1979) 2 NZLR 111.

131. Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Co Ltd (1972) AC 741 at 757, HL.

132. This explains the apparently restrictive result in Keen v Holland (1984) 1 WLR 251, CA. The parties had executed a lease of farm land, intending to take advantage of an exception to the creation of protected tenancies under the Agricultural Holdings Act, s 2(1). Delay in the execution of the lease took the term of the lease outside the loophole. The party claiming the estoppel argued that, as the parties had bargained on the basis that a protected tenancy would not be created by the lease, the respondent was estopped from claiming a protected tenancy. This plea was rejected in the Court of Appeal with Oliver LJ, as he had then become, holding: ‘once there is in fact an actual tenancy to which the Act applies, the protection of the Act follows and … the parties can [not] effectively oust the provisions of the Act by agreeing that they shall be treated as inapplicable.’ Ibid, at 261. See also Beckford Nominees Pp Ltd v Shell Co of Australia Ltd (1986) 73 Aust LR 373.

133. Cp cases rejecting an estoppel which would have the effect of disregarding the statutorily defined limits to the powers of statutory bodies such as local councils or even labour arbitrators: eg Rootkin v Kent CC (1981) 1 WLR 1186; Western Fish Products Ltd v Penwith DC (1981) 2 All ER 204. Cf CNR v Beatty (1981) 34 OR (2d) 385; Lever (Finance) Ltd v Westminster CC (1971) 1 QB 222. See critiques of this limit as artificial: C. Crawford and C. Reid, ‘Planning Officers Advice and Undertakings: Estoppel and Personal Bar in Public Law’ Occasional Paper #3, January 1982 (Scottish Planning Law and Practice, Planning Exchange of the Law Society of Scotland); A. M. Hickling, ‘Labouring with Promissory Estoppel; A Well-worked Doctrine Working Well?’ (1983) 17 UBCL Rev 183. See also, Farber and Matheson, op cit n 13.

134. >Keen v Holland, op cit n 132; Henrich Hanno v Co BV v Fairlight Shipping Co Ltd, op cit n 105; Con-Stan Industries Ltd v Nowrich Winterthur, op cit n 93; Chronoupoulos v Caltex Oil (1982) 70 FLR 8, 45 Aust LR 481. Cp Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd (1971] AC 850; Societe Italo Belge v Palm and Vegetable Oils Ltd, op cit n 1.

135. This factor explains the rejection of estoppels by convention in The August Leonhardt, op cit n 49, and Multon v Cordell, op cit n 105.

136. The August Leonhardt, op cit n 49, at 34.

137. See op cit n 9.

138. Offshore Oil v Southern Cross Explorations (1985) 3 NSWLR 337, (joint venture payments) criticising but reluctantly applying McCathie v McCathie, op cit n 104.

139. Op citn 18.

140. Ibid, at 122.

141. It was this suggestion that Oliver LJ was at pains to dispute in Keen v Holland, op cit n 132. Taken to its logical conclusion. the assumption would then over-ride the terms of a contract effective in classical law. It is submitted that the opinion of Oliver LJ is more sound on this point and is more in keeping with the proposition that this doctrine is appropriate to effect obligation where classical contract law would not do so. Where there is no dispute as to the terms of the agreement, but only a dispute as to the enforcement of them, an estoppel will not lie: Heinrich Hanno v Fairlight Shipping Co Ltd (1985) 1 Lloyd's Rep 231.

142. During 1974–6 Amalgamated Property had rearranged its overall investment portfolio with the bank, including new supplemental mortgage deeds which secured amounts due or owing to the bank by Amalgamated or its subsidiaries for loans in the UK and elsewhere.

143. As noted in Troop v Gibson, op cit n 54.

144. If the funds in the hands of the liquidator had been insufficient to meet the deficit, the additional debt would be a direct call on the guarantor.

145. Cp Greer v Kettle, op cit n 3, where a statement in a guarantee that it was made in relation to a primary loan secured by shares, was interpreted as only engaging liability if the loan was in fact validly secured. The assumption that it was validly secured was insufficient for an estoppel by convention. This case, decided by the House of Lords, runs contrary to the reasoning of the Court of Appeal in Amalgumated Property, op cit n 18.

146. Cp Onward Building Society v Smithson, op cit n 2. A covenant in a deed of transfer of land referred to the transferor as having title in the land. He did not. The covenant did not estop the transferee from averring absence of title against the mortgagee suing on the covenants as to title.

147. Op cit n 50.

148. Evidence of this included the terms of the original request, security for the facility given by the subsidiary, correspondence indicating that the loan was sought for the subsidiary and was personally guaranteed, and that the subsidiary was authorised to accept the bills of exchange. After receivership was commenced, the solicitors for the guarantors referred to the guarantee as covering financing for the group of companies.

149. This may have swayed Lord Oliver when the case was affirmed on other grounds by the Privy Council: [1987) 8 NSWLR 88.

150. Op cit n 50, at 170.

151. Op cit n 94.

152. Ibid, at 183.

153. Ibid, at 184.

154. Op cit n 54.

155. Ibid, at 1140.

156. Ibid, at 1143.

157. Op cit n 49.

158. Ibid, at 34.

159. Ibid, at 35.

160. Cp the remarkable early statement of Browne Wilkinson J in Re Shrpe (a bankrupt) (1980) 1 WLR 219 at 223: ‘Recent authorities have extended this doctrine of estoppel, and … it is now established that, if the parties have proceeded on a common assumption that the plaintiff is to enjoy a right … and in reliance on that assumption the plaintiff has expended money or otherwise acted to his detriment, the defendant will not be allowed to go back on that common assumption and the court will … give effect to that common assumption’.

161. Farber and Matheson, op cit n 13, at 928 and 929.

162. See MacNeil, Social Contract, op cit n 23, at 6 et seq, where he discusses non-promissory exchange projectors.

163. Ibid, at 22: ‘Modern technology demands extremely high levels of specification … and hence immense specificity is required in modern contractual relations … nevertheless, the modern contractual relation does not become simply a bunch of discrete transactions. Quite the contrary, the very complexity of modern technology calls for processes and structures tying even the most specific and measured exchanges into on-going relational patterns.’ Cp MacNeil, ‘Futures’ op cit n 37.

164. See P. Atiyah, ‘Contracts, Promises and the Law of Obligations’ (1978) 94 LQR 193 at 203-4. Cp Panchard Freres SA v Etablissments General Grain Co (1970) 1 Lloyd's Rep 53; The Hannah Bluementhal (1983) 1 Lloyd's Rep 103, per Diplock LJ.

165. B. Reiter, ‘Courts, Consideration and Common Sense’ op cit n 26, at 444.

166. Fuller and Perdue, op cit n 34.

167. Of course, agreements may independently be vitiated by duress etc. See North Ocean Shipping Go Ltd v Hyundai Construction Go Ltd (1979) QB 705; Syros Shipping Go Sa v Elaghill Trading Co Ltd (1981) 3 All ER 189.

168. Op cit n 18.

169. MacNeil, Social Contract, op cit n 23, at 51–52.

170. Op cit n 18.

171. Op cit n 50.

172. Op cit n 94.

173. Eg, Taylors Fashions, op cit o 56; Troop v Gibson, op cit n 54; Multon v Cordell, op cit n 135.

174. Laws Holdings Ltd Pty v Short (1972) 46 Aust LJR 563; Re Ontario Medical Association and Workers Compensation Board (1985) 52 OR (2d) 617.

175. Cp Calgary Milling Co Ltd v American Surety Co of New York (1919) 3 WWR 98; Costa v Co-operative Trust Co of Canada (1983) 144 DLR (3d) 164;O'Flaherty v British Acceptance Corporation Ltd (1964) 48 DLR (2d) 562.

176. Cp Habib Bank Ltd v Habib Bank AG Zurich, op cit n 117;Shaw v Applegate (1977) 1 WLR 970.

177. Op cit n 54.

178. Further, the landlord had benefited from the oral basis accepted for the tenancy in the earlier rental arbitration. Although the value of the reversion was lower because of the assignment, the landlord was not permitted to ‘approbate and reprobate’ his position.

179. Independent contracts: Fort Frances v Boise Cascade Co (1985) 1 SCR 171; AG of Newfoundland v Churchill Falls (Labrador) Corporation. op cit n 63. Third party rights including the rights of other creditors: Scotsburn Cooperative Services Ltd v W. T. Goodwin Ltd (1985) I SCR 54; Engineered Homes Ltd v Mason (19830 146 DLR (3d) 577; Ashphitel v Bryan (1864) 3B & S 474, 122 ER 179. This factor may also explain the restrictive decision in Con-Stan Industries v Norwich Winterthur, op cit n 93.

180. J. Feinman, ‘Critical Approaches to Contract Law’ (1982–3) 30 UCLA L Rev 829 at 849. In some circumstances, it could also be the parties who are educating the court.

181. Reed v Sheehan, op cit n 6.

182. Ibid, at 262.

183. Ibid, at 273.

184. Ibid, at 269.

185. Ibid, at 265.

186. Op cit n 56.

187. [1983) 1 Lloyd's Rep 188.

188. Cp McCance v London and NW Railway Co (1864) 3 H & C 343, 159 ER 563.

189. Opcit n 122.

190. Pacol v Trade Lines, The Henrik Sif (1982) 1 Lloyd's Rep 456, QBD.

191. The Hannah Bluementhal (1983) 1 Lloyd's Rep 103, HL; CFID v Deutche Continental Handelsgesellschaft (1985) 2 Lloyd's Rep 592; The Leonidas ‘D’ (1985) 2 Lloyd's Rep 18; The Agrabele (1985) 2 Lloyd's Rep 496. The courts have held that for an estoppel it must be shown ‘that the buyers so conducted themselves as to entitle the sellers to assume, and that the sellers did assume, that the contract was agreed to be abandoned sub silentio’, per Lord Brightman in The Hannah Bluementhal at 22; approved by the court of Appeal in The Leonidas D; followed in CFID v Deutch Conti. Interestingly, the judges have commented that if there is insufficient basis for an assumed contract, there is also insufficient basis for an estoppel. The closeness of estoppel to the contract analysis was commented on by Lord Brandon at 114, in The Hannah Bluementhal when he said that there are two ways in which an abandonment of contract could be argued. The first was implied agreement, and the second ‘the creation of a situation by E in which he is estopped from asserting that he has not abandoned the contract.’ In the same case Lord Diplock went further and held, at 115, that the ‘contract’ to abandon could arise if it could be shown ‘that the buyers so conducted themselves as to entitle the sellers to assume, and that the sellers did so assume, that the contract (to refer to arbitration) ‘was agreed to be abandoned’; noted by Goff LJ in The Leonidas Dat 25.