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To understand the law of estoppel today, it is necessary to take a brief look at how it has developed. A number of branches or categories of estoppel, with different origins and inconsistent rules, have been developed over the years to meet changing human and commercial needs. The result has not been tidy. This chapter provides a rapid sketch rather than a comprehensive history as it examines the three main strands of development within the law of estoppel, noting some of the difficulties caused by the growth of categories in this way. It refers, of necessity, to the numerous labels for the various forms of estoppel as they have evolved, and the messiness of this will be obvious.

This chapter looks at the real significance of the distinctions between different forms of estoppel. One distinction that has been questioned is that between proprietary estoppel and the principle in the 1947 case Central London Property Trust Limited v. High Trees House Limited, known as promissory estoppel. The chapter divides estoppel into the formal estoppels and reliance-based estoppel, and uses the term ‘estoppel’ to refer to the latter unless otherwise stated. Reliance-based estoppel is treated as a unity; variations within it are described transparently, rather than using terms which have become ambiguous. Hence, we can speak of the special considerations arising when the representation is by silent inaction, or when the representation is a concession of contractual obligations (a High Trees-type case), or when the representation is about land.

This chapter considers the circumstances in which the courts impose a proprietary interest in favour of a claimant over an asset which is not a substitute for the claimant’s own asset. It discusses when and why a constructive trust is imposed for breach of fiduciary duty. It looks at when a trust is imposed where one person uses another’s property, information, or opportunity. It considers when proprietary estoppel arises, and what its proprietary consequences are. It discusses to what extent remedial constructive trusts are available and when common law possessory liens or equitable liens are imposed.

This chapter examines the importance of proprietary estoppel (PE) in terms of Equity’s mission of aligning moral responsibility with legal liability, focusing on PE claims that are based on a ‘common expectation’ that arises in the context of pre-contractual negotiations. It first considers what Thomas Scanlon calls Principle L (for Loss prevention) and how its tort-like exposition misses—or glosses over—the voluntary modus of the loss prevention obligation (LPO). It then explains how the legal enforcement of LPOs can be justified from the perspectives of justice and efficiency, and how the conscionability element enables the courts to balance the Rule of Law (ROL) and Accountability Correspondence in the regulation of the pre-contractual stage. It concludes with the argument that Equity, via the doctrine of PE, is redressing a significant failure in the Common Law to tackle behaviour that disregards both morality and efficiency.

This chapter examines the moral values underlying the doctrine of proprietary estoppel (PE). It is organized as follows. Section 2 discusses the nature of the Loss Prevention Assurance (LPA) obligation, and the way in which the ability to assume it is valuable for representor as well as representee. Section 3 argues that the state should enforce LPA obligations which are assumed by sellers of property rights in the pre-contractual period. This is because a legal rule that forces compliance with one’s moral duty in these circumstances will foster and encourage the socially valuable practice of efficient pre-contractual reliance. Private arrangements between the parties cannot do the work all on their own, and a default rule for allocating responsibility for pre-contractual reliance must be in place. Section 4 shows that PE sets out this rule. The chapter argues that PE should be read as enforcing LPA obligations even where it operates in situations of promises to give a gift which fail on formality requirements. It shows how this interpretation of the obligation that lies at the heart of PE can help us to understand the most unique, and contentious aspect of the doctrine, namely, the remedy which successful claimants in PE can expect to get.

This chapter examines consent-based implied bare licences, considering situations where the copyright owner impliedly grants a licence gratuitously, meaning nothing (whether payment or any other form of consideration) flows to the copyright owner in return for the licence. The modern relevance of a consent-based implied bare licence lies in its application to the copyright work placed on the internet by its owner or with her consent. It examines the case law in the light of the framework proposed in Chapter 3, that separates the conduct of consenting separately from the knowledge required to consent. It also discusses the revocability of bare licences. A consent-based bare licence can be revoked, since the ability to grant such a licence and to revoke it (upon reasonable notice) both originate from the powers of the copyright owner. However, there are situations where these licences cannot be revoked, and the courts have ascribed proprietary estoppel as the reason for irrevocability.

This chapter identifies the conditions for a person’s rightfully coming to own something outside a public legal order, and it observes how these conditions are reflected in the common-law doctrines of possession, adverse possession, free alienability, and market overt. It then shows how the embodiment of personality in private property subverts rather than realizes its end-status. This outcome leads to a reconceptualization of the human being as a moral subject whose particular ends are self-authored, whose self-authorship requires material supports, and whose welfare can thus be an object of public concern. With this new foundation is understood a legal paradigm whose doctrines (e.g. proprietary estoppel, quasi-property) remedy the person’s self-loss in private property and perfect its independence. Also understood, however, is a theoretical momentum toward the dissolution of private property in the common welfare, a momentum counteracted by the very principle of individual autonomy the welfarist paradigm seeks to realize. The resultant tension between individualistic and collectivist paradigms constitutes the modern challenge for a theory of the property law’s unity. The chapter responds to this challenge with a legal foundation already implied by the downfall of the old, one that incorporates both paradigms as constituent parts of a whole.

In this concluding chapter I discuss some findings from the analysis of three of Equity’s fundamental doctrines we explored: fiduciary law, proprietary estoppel, and clean hands. I wish to highlight the traits they share and consider the relationship between the legal ideals of efficiency and Accountability Correspondence which they exemplify. Drawing up the strings of the last three chapters will also reveal how the courts use the category of conscionability to ensure that the value of the Rule of Law is sacrificed only in cases where it is necessary to maintain a healthy balance with Accountability Correspondence, in a way that also serves efficiency. Finally, I wish to show how the discussions of the specific doctrines support the argument that the fusion project as a general solution to the friction between law and Equity ought to be rejected.