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Understanding unconscionability in proprietary estoppel

Understanding unconscionability in proprietary estoppel
Understanding unconscionability in proprietary estoppel
In a series of recent cases, courts have reasserted unconscionability as the basis of proprietary estoppel and in doing so have moved away from the structured form of discretion envisaged in the classic Taylors Fashions formula. In light of these developments, this paper traces the use of unconscionability in estoppel and examines the changing role attributed to the concept. In a parallel development, in exercising their remedial discretion once a claim to estoppel has been established, the courts have emphasised the foundation of estoppel in unconscionability to assert the need for proportionality between the detriment and remedy as ‘the most essential requirement’. Collectively, the cases demonstrate a lack of transparency or consistency, which raises concerns that the courts are descending into a form of individualised discretion. These developments are of particular concern as they come at a time when commentators are predicting a ‘boom’ in estoppel to follow the introduction of electronic conveyancing.
1030-7230
210-232
Hopkins, N.
acd9b338-e5f1-4149-9271-3ab08d5dd5db
Hopkins, N.
acd9b338-e5f1-4149-9271-3ab08d5dd5db

Hopkins, N. (2004) Understanding unconscionability in proprietary estoppel. Journal of Contract Law, 20 (3), 210-232.

Record type: Article

Abstract

In a series of recent cases, courts have reasserted unconscionability as the basis of proprietary estoppel and in doing so have moved away from the structured form of discretion envisaged in the classic Taylors Fashions formula. In light of these developments, this paper traces the use of unconscionability in estoppel and examines the changing role attributed to the concept. In a parallel development, in exercising their remedial discretion once a claim to estoppel has been established, the courts have emphasised the foundation of estoppel in unconscionability to assert the need for proportionality between the detriment and remedy as ‘the most essential requirement’. Collectively, the cases demonstrate a lack of transparency or consistency, which raises concerns that the courts are descending into a form of individualised discretion. These developments are of particular concern as they come at a time when commentators are predicting a ‘boom’ in estoppel to follow the introduction of electronic conveyancing.

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Published date: October 2004

Identifiers

Local EPrints ID: 27941
URI: http://eprints.soton.ac.uk/id/eprint/27941
ISSN: 1030-7230
PURE UUID: 32255492-f2b5-48df-a756-a68a44319d7a

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Date deposited: 19 May 2006
Last modified: 19 Jul 2019 19:03

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Contributors

Author: N. Hopkins

University divisions

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