[French, The country; the neighborhood.] A trial per pais denotes a trial by the country; that is, trial by jury.
An Estoppel
in pais means that a party is prevented by his or her own conduct from
obtaining the enforcement of a right which would operate to the
detriment of another who justifiably relied on such conduct.
This type
of estoppel differs from an estoppel by deed or by record which, as a
result of the language set out in a document, bars the enforcement of a
claim against a party who acted in reliance upon those written terms.
Estoppel is essentially a rule of evidence[3] whereby a person is barred from denying the truth of a fact that has already been settled. Where a court finds that a party has done something warranting a form of estoppel, that party is said to be "estopped" from making certain related arguments or claiming certain related rights. The defendant is said to be "estopped" from presenting the related defence, or the plaintiff is said to be "estopped" from making the related argument against the defendant. Lord Coke stated, "It is called an estoppel or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth."[4] The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day to day transactions. [5]
Because estoppel is so factually dependent, it is perhaps best understood by considering specific examples.
Promissory estoppel is often applied where there is an agreement without a consideration, or the consideration is future based; as a promise. When applied in defense by a defendant it may be called a 'shield', and where applied by a plaintiff it may be called a 'sword'.[7][8] It is most commonly used as a 'shield',[9] with some commentators stating that it can only be used as a shield, although this varies with jurisdictions.[10]
Estoppel is essentially a rule of evidence[3] whereby a person is barred from denying the truth of a fact that has already been settled. Where a court finds that a party has done something warranting a form of estoppel, that party is said to be "estopped" from making certain related arguments or claiming certain related rights. The defendant is said to be "estopped" from presenting the related defence, or the plaintiff is said to be "estopped" from making the related argument against the defendant. Lord Coke stated, "It is called an estoppel or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth."[4] The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day to day transactions. [5]
Because estoppel is so factually dependent, it is perhaps best understood by considering specific examples.
- Example 1: A city entered into a contract with another party. The contract stated that it had been reviewed by the city's counsel and that the contract was proper. Estoppel applied to estop the city from claiming the contract was invalid.[6]
- Example 2: A creditor unofficially informs a debtor that the creditor forgives the debt between them. Even if such forgiveness is not formally documented, the creditor may be estopped from changing its mind and seeking to collect the debt, because that change would be unfair.
- Example 3: A landlord informs a tenant that rent has been reduced, for example, because there was construction or a lapse in utility services. If the tenant relies on this statement in choosing to remain in the premises, the landlord could be estopped from collecting the full rent.
Promissory estoppel is often applied where there is an agreement without a consideration, or the consideration is future based; as a promise. When applied in defense by a defendant it may be called a 'shield', and where applied by a plaintiff it may be called a 'sword'.[7][8] It is most commonly used as a 'shield',[9] with some commentators stating that it can only be used as a shield, although this varies with jurisdictions.[10]
Major types
The main species of estoppel under English, Australian, and American laws are:- Reliance-based estoppels:
These involve one party relying on something the other party has done
or said. The party who performed/spoke is the one who is estopped.
Under English law, this class includes estoppel by representation of
fact, promissory estoppel and proprietary estoppel (see Halsbury's Laws
of England, Vol 16(2), 2003). Although some authorities have used
language to suggest reliance-based estoppels are mere rules of evidence, they are rules of substantive law.
- Estoppel by representation of fact (English law name), equitable estoppel (American law)
- Equitable estoppel (in English law), including
- Proprietary estoppel
- Promissory estoppel
- Estoppel by record: This frequently arises as issue/cause of action estoppel or judicial estoppel where the orders or judgments made in previous legal proceedings prevent the parties from relitigating the same issues or causes of action,
- Estoppel by deed (often regarded as technical or formal estoppels) Where rules of evidence prevent a litigant from denying the truth of what was said or done
- Estoppel by silence or acquiescence: Estoppel that prevents a person from asserting something when he had the right and opportunity to do so earlier, and such silence put another person at a disadvantage.
- Laches: estoppel in equity by delay. Laches has been considered both a reliance-based estoppel, and a sui generis estoppel.
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