Promissory Estoppel is a shield not a sword

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“Promissory estoppel may be used as a shield but not a sword”

        English Law defines promissory estoppel as “a principle of justice and of equity. It comes to this: when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to so.” Estoppel provides a way in which promises can be legally binding even if no consideration has been given.  The importance of promissory estoppel in contract law is that it has enabled legal obligations, which fall into the category of contract law but fail to show any consideration, to be argued for.  Promissory estoppel relates to a future contract or a form of future conduct, where a promise, or something very much resembling a promise, is made in future tense not to do something.  It prevents a party from acting in a certain way because the first party promised not to do something, and the second party relied on that promise and acted upon it. The courts of Equity made it clear that in certain cases a person could not go back on such a future promise, thus proving to be binding despite the fact that no consideration had been given.

        The statement that “promissory estoppel may be used as a shield but not a sword” was introduced by the council in the case of Combe v Combe and was later approved by Birkett LJ.  What was meant by this maxim was that promissory estoppel can be used as a defence mechanism to protect someone who stands to suffer from a promisor’s enforcement of their strict legal rights after a situation has occurred where there had been a change, for whatever reason, to a previous contract.  This is what is meant by a “shield,” which is defined in the English dictionary as “an article of defensive armour…used as protection.”  This definition provides the background to the statement and thus demonstrates that if something is used, its purpose being as a shield, then its function is to protect that person and not to attack another.

        The definition of “sword” on the other hand is defined as being “Something that wounds or kills, a cause of death or destruction, a destroying agency; also, something used as a weapon of attack.”  A sword is something to be used to attack another and therefore, as it is stated that promissory estoppel is not to be used as a sword, it is clear that its function is to soley to protect the promisee from falling prisoner to an unjust enforcement of the promisor’s strict legal rights.

        Lord Denning is a leading figure in the field of promissory estoppel and has brought its implementation back into the spotlight, with the case of Central London Property Trust v High Trees House Ltd, after its use it had largely remained dormant for the latter part of the 19th century after the cases of Hughes v Metropolitan Railway Co, where Lord Cairns held that “It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results, certain penalties or legal forfeiture, afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties,” and also shown in the case of Birmingham & District Land Co v London & North Western Railway Co.  In this case although estoppel was applied it was used the sense of the negative promise that “you need not perform the contract that is written,” thus demonstrating that promissory estoppel can be used as a shield but not a sword as it prevents the promisee from having to abide with the strict legal rights of the promisor, if it would be just to do so.  

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        The case of Central London Property Trust v High Trees House Ltd, where A landlord informed a tenant that, during the course of the war, that the rent would be reduced. The landlord company went into receivership. The receiver noted that the reduced rent had been paid for some 5 years and demanded the sum that had been unpaid. A test case was brought to see if the landlord's promise to reduce the rent was legally enforceable. The principle of promissory estoppel is demonstrated to be, in this case, that it does not grant new causes of action to the ...

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