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In deciding whether or not it is wrong, or unconscionable, for the maker of a representation to go back on it, the courts consider a number of factors. One must look at the conditions for estoppel once a representation has been made out. If the historical distinction between common law and equitable estoppels no longer reflects the way decisions are made, then in all cases of estoppel a decision is taken about unconscionability (or inequity); that is, whether or not it is wrong for the maker of a representation to go back on it. In deciding this, the court looks at whether or not there has been detrimental reliance on the representation, and is free to consider other factors. This chapter considers unconscionability as the deciding factor in the question of whether or not there is an estoppel and then examines detrimental reliance and other factors relevant to that decision.

In this chapter the position in English law on liability for nonfeasance is subjected to a closer analysis. Here, some specific circumstances that may give rise to affirmative duties are assessed and investigated. It should at the outset be noted that the categories of circumstances that are distinguished in these sections sometimes overlap. As it can be seen, in many cases it is the combination of circumstances that has given rise to the imposition of an affirmative duty. The presence of an undertaking — especially if accompanied by detrimental reliance — may give rise to an affirmative duty and thus to an exception to the rule of no liability for nonfeasance. Several justifications for allowing such an exception in these cases are also discussed in this chapter.

This chapter examines contract law and theory in England in 1770. It discusses the concepts and principles of the evidentiary role of promises, fair exchange, quasi-contract, detrimental reliance, and enforcement of contractual duties. It states that during this period a clear and relatively simple model of contract has dominated the thinking of common lawyers. The lawyers lacked a general theory of contractual liability and most laws related to contracts involved a confusing mixture of ideas.

The use of trusts to protect assets from the effects of insolvency has long been an attractive option for those who wish to ring-fence their assets against the claims of creditors. In modern asset recovery litigation, these problems are spread across a number of jurisdictions. Therefore, as well as understanding how such issues are dealt with domestically, it has become increasingly important to understand the detail of offshore legislation and common law as well.