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FACULTY OF LAW & GOVERNMENT

Department of Law

NAME OF STUDENT

: Adrienne Sena

STUDENT ID NUMBER

: B 1302604

SUBJECT NAME

: Law of Contract

SUBJECT CODE

: DL 1

NAME OF EXAMINER

: Vilmah Balakrishnan

WORD COUNT

: 3307 words

Index
No.

Content

Page No

1.

Table of Authorities

3-4

2.

Question

3.

Answer

6-17

4.

Bibliography

18-21

5.

List of References

22-24

6.

Turn-It-In Report

25-41

Table of Authorities
No.

Case Names

Citation

Page Number

1. Currie v Misa

[1875] LR 10 Ex 153

2. Antons Trawling Co v
Smith

[2003] 2 NZLR 23

3. New Zealand Shipping Co


Ltd v AM Satterhwaite &
Co Ltd
4. Hughes v Metropolitan
Railway

[1975] AC 154

[1877] 2 AC 439

5. Central London Property


Trust v High Trees House

[1947] 1 KB 130

6. D & C Builders v Rees

[1966] 2 QB 617

7. Woodhouse AC Israel
Cocoa SA v Nigerian
Produce Marketing Co Ltd
8. Combe v Combe

[1972] AC 941

[1951] 2 KB 215

9. Tweddle v Atkinson

[1861] EWHC QB J57

10. Pao on v Lau Yiu Long

[1979] 3 All ER 65 Privy


Council

11. Jones v Padavatton

[1979] 1 WLR 328

12. Chappell & Co v Nestle


Co Ltd

[1960] AC 87

13. Waltons Stores


(Interstate) Ltd v Maher

[1998] 164 C.L.R 387


(H.C.A)

10

14. Gay Choon Ing v Loh Sze


Ti Terence Peter

[2009] 2 S.L.R 332 (CA)

10

15. Williams v Roffey Bros &


Nicholls (Contractors) Ltd

[1991] 1 QB 1

12

16. Stilk v Myrick

[1809] 170 ER 1168

12

17. Ward v Byham

[1956] 1 WLR 496

13

18. Williams v Williams

[1957] 1 WLR 148

13

19. Foakes v Beer

[1884] UKHL 1

13

20. Re Selectmove Ltd

[1993] EWCA Civ 8

14

21. Musumeci v Winadell Pty


Ltd

[1998] 34 NSWLR 723

14

22. Thompson v Palmer

[1993] 49 CLR 507,547

14

23. Je Maintiendrai Pty Ltd v


Quaglia

[1980] 26 SASR 101

15

24. Collier v P & MJ Wright


(Holdings) Ltd

[2008] 1 WLR 43

15

25. Pinnels Case

[1602] 5 Rep 117

15

26. Syros Shipping Co SA v


Elaghill Trading Co

[1980] 2 Lloyds Rep 390

15

27. Baird Textile Holdings Ltd


v Marks and Spencer plc

[2001] EWCA 274

16

28. Burbery Mortgage


Finance and Savings Ltd
v Hindsbank Holdings Ltd
29. Gilbert Steel Ltd v
University Construction
Ltd
30. Commonwealth v
Verwayen

16
[1989] 1 NZLR 356
[1973] 36 DLR (3d) 496

16

[1990] HCA 39

17

Question
Estoppel is a mechanism for enforcing consistency; when I have said or done
something that leads you to believe in a particular state of affairs, I may be obliged to
stand by what I have said or done, even though I am not contractually bound to do
so.
E Cooke, The Modern Law of Estoppel (OUP, 2000) 1-2

While the doctrine of promissory estoppel was developed to negate the harm caused
by the promisors unconscionable inducement of the promisees reliance, the
doctrine now appears well placed as an alternative to consideration.

Is this true? Critically assess the accuracy of the statement above. Examine this
issue in the light of developments in the area of promissory estoppel in the United
Kingdom and Australia.

Answer
A contract is an agreement enforced by law and includes elements like offer,
acceptance and consideration.1 This essay aims to evaluate the doctrine of
consideration and promissory estoppel as well as discuss whether UK courts should
follow the Australian footsteps in replacing consideration with promissory estoppel.
The doctrine of consideration as explained in Currie v Misa2 is either some right,
interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss
or responsibility, given, suffered, or undertaken by the other. It is also described as a
price which parties of a contract give to each other for respective promises.
Consideration prioritises bargains and is important as it reflects the serious
undertakings of both parties entering the agreement 3 as explained in Antons
Trawling Co v Smith4 whereby the judge explained that consideration is a
valuable signal that the parties intend to be bound by their agreement, rather than an
end itself. It is also an enforcement of bargains which upholds welfare maximisation
and shows the idea of reciprocity.5 Parties in the contract will have to give a benefit
and suffer a detriment which will be found or invented by courts in order for
consideration to be sufficient and only then will a contract be valid and binding.

1 As held by Lord Wilberforce in New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd (The Eurymedon)
[1975] AC 154

2 [1875] LR 10 Ex 153
3 Mindy Chen-Wishart, Contract Law ( 3rd edition, Oxford University Press, 2010) 121
4 [2003] 2 NZLR 23 by Baragwanath J of the New Zealand Court of Appeal
5 G H Treitel, An Outline of The Law of Contract (5th edition, Butterworths, 1995) 29 explains that reciprocity is
that a promisee should not be able to enforce the promise, unless he has given (or promised to give), or unless
the promisor has obtained (or been promised), something in exchange for it

Consideration also consists of other elements like past consideration is insufficient,


consideration must move from the promisee, existing public and contractual duties
will not suffice as consideration, part payment of debt does not amount to
consideration for a promise to forego the balance and that consideration only needs
to be sufficient, not adequate. Although the doctrine has been long adopted by UK,
there are problems with the doctrine as addressed by courts and thus, the doctrine of
promissory estoppel was created to alleviate the unfairness of consideration.
Promissory estoppel is an equitable doctrine which originated from the
doctrine of waiver. The UK courts had created this to mitigate the strict laws of
consideration, not replace it. It was first raised in Hughes v Metropolitan Railway6,
where Lord Cairns LC held that if [contracting parties] -- 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 under the contract will
not be enforcedthe person who otherwise might have enforced those rights will not
be allowed towhere it would be inequitable. The concept was later solidified in
Denning Js orbiter statement in Central London Property Trust v High Trees
House7 whereby had Central London sued the defendants between 1940 and 1945;
they would be estopped from such claims as promissory estoppel does not allow one
to go back on a promise given, although no consideration was exchanged between
the parties. The requirements8 of promissory estoppel are that there must be a clear
and unequivocal promise9 between two parties, there was reliance on the promise by
either parties and it would be inequitable to go back on the promise due to the
6 [1877] 2 AC 439
7 [1947] 1 KB 130
8 Mindy Chen- Wishart (n 3) 165
7

reliance. The effect of it is suspensory, not extinctive, unlike consideration whereby


the promise is fully enforceable. As an equitable doctrine, it can only be used as a
shield and not as a sword as he who comes to equity must come in clean hands,
such in D&C Builders v Rees10 where the courts held that Mrs. Reess actions were
inequitable and she could not rely on promissory estoppel. Thus, consideration and
promissory estoppel are two separate doctrines where the former can be used as a
basis for legal claims while the latter is used only for defences against legal claims. 11
Although both doctrines are different in nature, they are supplementary as
promissory estoppel helps alleviate the unfairness of consideration.
One of the reasons why promissory estoppel was created was due to the
inaccuracy in the doctrine of consideration. There has been various interpretation of
the definition of a valuable consideration 12 which includes the rule that a benefit or
detriment should be present in order to constitute good consideration. Theoretically,
as long as either a benefit or detriment is present to either contracting parties, there
is sufficient consideration. However, stemming from consideration must move from
the promisee13, both parties seem to need to provide consideration to make the
contract enforceable and thus become vague whether a benefit given to the promisor

9 Woodhouse AC Israel Cocoa SA v Nigerian Produce Marketing Co Ltd [1972] AC 941, House of Lords
10 [1966] 2 QB 617
11 Combe v Combe [1951] 2 KB 215 In this case, it shows that promissory estoppel can only be used as a
defence for legal claims and not as a legal claim itself

12 Mindy Chen- Wishart (n 3) 128-129


13 Tweddle v Atkinson [1861] EWHC QB J57 This case provides that a party cannot enforce a contract unless
consideration was provided

with no detriment to the promisee will be good consideration or not. 14 There may
also be cases where consideration comprises of detriments to the promisee with no
corresponding benefit to the promisor 15 and as such, the definition itself is unclear.
Moreover, there lies a problem in the value of the consideration requested by the
parties. As Smith says, [It is only necessary for the defendant to expressly or
implicitly ask for something in return for his to make his promise sufficient for
consideration]. When a party requests for something in exchange for his promise,
there has to be some value which the party attaches to it. Nevertheless, the concept
of value is subjective and although the contracting parties see a benefit or detriment
to it, the courts may not. Courts may also invent consideration like in Chappell v
Nestle16 thus creating uncertainty which may be unfair in promises such as bargains
or gifts where the parties attach some consideration in it but may not fall within the
doctrine as courts may not find the consideration valuable hence making the promise
unenforceable. The vague definition of value here makes consideration inaccurate
and unfair thus promissory estoppel was created to overcome this.
Promissory estoppel as mentioned above is the enforcement of promises
without consideration.17 Cooke18 says that: Estoppel is a mechanism for enforcing
consistency; when I have said or done something that leads you to believe in a
14 Pao On v Lau Yiu Long [1979] 3 All ER 65 Privy Council
15 Jones v Padavatton [1979] 1 WLR 328

16 Chappell & Co v Nestle Co Ltd [1960] AC 87 In this case, Treitel argues that UK courts can invent
consideration by treating an act or forbearance as consideration although it was not the promisors purpose to
obtain it

17 Denning J held in Central London Property Trust Ltd v High Trees House Ltd [1947] that A promise intended
to be binding, intended to be acted upon, and in fact acted on, is binding so far as its terms properly apply

18 E Cooke, The Modern Law of Estoppel (OUP,2000) 1-2


9

particular state of affairs, I may be obliged to stand by what I have said or done,
even though I am not contractually bound to do so, thus, it allows promises with
serious intention but lacking consideration to be enforced. This remedies the issue
where in some cases; the courts deem consideration as absent or insufficient
although the parties intend to be bound like in bargains, conditional gifts and
gratuitous promises. Moreover, it prevents the courts from inventing consideration
when it was not the intended purpose of the promisor to obtain it 19 and thus protects
both contracting parties. Although based on the protection of reliance, promissory
estoppel often holds the promisor to his promise and thus protects the promisees
expectation instead. As seen, there is a clash between consideration and promissory
estoppel. Reliance loss theory puts a claimant in his original position as if the
contract had not been made while expectation loss seeks to put the innocent party in
the position as if the contract was performed. UK courts thus face more confusion as
the two different doctrines yield overlapping effects. However, Australian courts has
been said to remedied this issue in Waltons Stores (Interstate) Ltd v Maher 20 by
stating that they both produce different liabilities. Consideration gives a contractual
cause of action for the full expectation of the promisee while promissory estoppel
responds to the promisors unconscionable refusal to carry out his promise after the
promisee had relied on it. As such, there is no clash within the two doctrines if courts
were to distinguish them clearly and promissory estoppel could replace consideration
in order to overcome the vagueness.

19 (n 16)
20 [1998] 164 C.L.R. 387 (H.C.A.) Brennan J justifies the clash by stating that the two doctrines yield two
separate results and thus both can be used as a cause of action

10

Besides that, the sufficiency and necessity of consideration is arguable. As


Charles Fried21 argues, the rule that consideration need not be adequate supports
the idea that the free arrangements of rational persons should be respected. This
may be problematic as it recognises any trifling benefit or detriment to amount to
valid consideration and thus allows form to triumph over substance 22, thus
undermining the bargain theory of contract. 23 This is seen in nominal considerations:
Chappell & Co. Ltd v Nestle Co .Ltd.24This type of consideration is stated only for
form and as Atiyah observes, is the clearest possible indication that the promisor
intended his promise seriously and intended to make the contract legally
enforceable. As for the necessity of consideration, Phang J.A suggests 25 that the
marrow of contractual relationships should be the parties intention to create a legal
relationship and had supported this statement by quoting the UK committee 26 which
suggests that the very existence of a contract already show the parties intention as
they took additional efforts to enforce the contract. If they were not serious about
being bound, why would they go the extra mile and make the contract? In executory

21 Fried, For an Argument for the Enforcement of Gratuitous Promises Based on an Economic Analysis, 1981
22 Mindy Chen-Wishart, Contract Law, (3rd edition, Oxford University Press) 132
23 Fried (n 21) 35 The bargain theory of contract as explained by Fried is that something has to be given in
exchange for a promise to make the promise be enforceable. He also explains it as the free arrangements of
rational persons

24 ( n 16) In this case, three stipulated chocolate wrappers were held as sufficient consideration for a
gramophone record and thus show that even the most trifling benefit or detriment qualities can be valid
consideration

25 Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 S.L.R. 332 (CA)
26 The UK Committee proposed that the effect of consideration is merely evidence of serious intention to
contract and that consideration should be dispensed with where evidence of the promise is otherwise available,
such as where the promise is in writing

11

bilateral contracts, a promise is given first before it is performed and hence


consideration does not arise until contract has been performed partly or completely
but is still enforceable in courts. This shows that consideration is not a necessity in
proving the intention of parties. Hence, it can be argued that consideration may
neither be necessary nor sufficient when enforcing a contract and should be
replaced.
The suggestion to replace consideration with promissory estoppel is justified
as the doctrine uses reliance as an enforceability test. Courts would enforce
promises solely based on whether there was reliance by the promisee on the
promise which makes it unfair for the promisor to go back on the commitment of the
promise. Without the narrow scope and strict requirements of consideration,
promissory estoppel is flexible enough to allow the law to adapt to different cases,
especially cases where the promisee is at a disadvantage. Treitel rebutted the
argument about the sufficiency of consideration by stating that the adequacy of
consideration is immaterial27 and that nominal consideration follows the adequacy
rule as the doctrine does not deal with whether the bargain was favourable to both
parties or not. Moreover, he argued that the doctrine is not wholly unfair as there are
exceptions to it. Nevertheless, consideration should not be the primary or sole test of
enforceability as it is evident that although there are exceptions to it, the doctrine has
strict rules which must be followed. However in promissory estoppel, as long as the
claimants relied on a clear promise and was unconscionable for the defendants to go
back on the promise, claimants would be able to claim damages. Mentioned above,
the doctrine prevents the redundancy of consideration and intention to create legal
relation. As suggested, in a contract, the State should not interfere in evaluating
27 G H Treitel, A critical analysis of Professor Atiyahs fundamental restatement, [1976] ALJ 50
12

choices made by individuals28 and that the decisions of contracting parties should be
neutral and subjective as it lies within their intentions, not the courts. Nevertheless,
Atiyah argues that it is rare to find instances where a promise is enforced with no
benefit or detriment given and that courts would be able to invent these benefits or
detriments29, even if they arise from motives. Thus, UK courts should consider the
developments in other jurisdictions like Australias whereby they have moved away
from consideration and have moved towards promissory estoppel as a test of
enforceability.
Another problem with consideration is that the rule practical benefit can
amount to sufficient consideration is limited in different ways. The general rule is that
the performance of an existing contractual duty or a promise to perform an existing
duty does not amount to consideration. 30 However, later in Williams v Roffey
Bros31, the courts held that the promise to pay more to perform an existing duty can
be enforced if a practical benefit is given and that this additional benefit would be
counted as good consideration. In Williams v Roffey Bros, the defendants had to
pay the extra sum promised as the promise given had helped Williams (carpenters)
to finish up their work thus giving them a practical benefit avoidance of the penalty
clause, avoidance of trouble in finding new carpenters and preventing a breach of
contract. Thus, this case demonstrates that consideration is needed to enforce
28 Mindy Chen- Wishart, Consideration and Serious Intention, [2009] Sing J.L.S. 434,442
29 In Chappel & Co Ltd v Nestle Co.Ltd the courts held that there was an indirect benefit which was derived
from the motive of the promise

30 Stilk v Myrick [1809] 170 ER 1168 The courts held in this case that there was no consideration for the
promise to pay the sailors more money as they were doing what they were originally obliged to do under the
existing contract

31 Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1


13

promises of more for the same but it need not be just legal benefits; it can consist of
practical benefits too. Besides that, the promise must be given voluntarily without
improper pressure.32 Firstly, it is limited because the definition of practical benefit is
unclear. The Court of Appeal failed to define what amounted to a practical benefit.
For an example, Lord Justice LJ held that consideration existed from the
advantages accruing to them as a consequence of the plaintiffs guaranteed
performance. He did not define what practical benefit meant but merely concluded
that a secondary promise under an existing contract is enforceable as long as the
promisor obtained an advantage arising out of the continuing relationship with the
promisee.33 Lord Justice Purchass concluded similarly whereby a consideration
would be found in secondary promises as long as there was a commercial
advantage received. In Glidewell LJs leading judgement, His Honour had only
shown the circumstances where a practical benefit may arise by citing previous
judgements34 but also failed to define practical benefit. Above all these, other
judges had different views of what practical benefit meant and this makes the term
too ambiguous35,widening the scope of consideration and as such [emaciates] the
doctrine to the point of abolition. 36

32Mindy Chen- Wishart, (n 3) 143-144 Glidewell LJs judgement in Williams v Roffey Bros
33 Williams v Roffey Bros (n 31) Lord Justice LJ
34 Glidewell LJ cited Ward v Byham [1956] 1 WLR 496,498 and Williams v Williams [1957]1 WLR 148,151
where both cases had not defined what practical benefit meant

35 Mark A. Giancaspro, For Your Consideration: Old Rules, Practical Benefit and a New Approach to
Contractual Variation,
(2014),<https://digital.library.adelaide.edu.au/dspace/bitstream/2440/84690/8/02whole.pdf> accessed 24
December 2015

36 Phang J.A in (n 25)


14

Secondly, the concept of a practical benefit is limited in terms of its


application. This is said because a promise to give more can be good consideration
while a promise to accept less cannot. Lord Blackburn noted in Foakes v Beer that
prompt payment of a part of their demand may be more beneficial to them than it
would be to insist on their rights and enforce payment of the whole 37Other cases
like Re Selectmove Ltd38 too supported the decision that a promise to accept less is
not good consideration. However, the Supreme Court of New South Wales had
accepted a promise to accept less as good consideration 39 and modified the
elements for the test to establish practical benefit. Phang J.A. suggests that
practical benefit as consideration should be extended to promises to take less
rather than being limited to promises to give more. 40 This means that a practical
benefit will not only amount to consideration when parties in a contract make an
additional promise to give something extra, but also in promises where they agree to
accept less than what was initially promised. If UK were to extend the meaning of
practical benefit, it would need to be made by the House of Lords or more
appropriately, by Parliament after consideration by the Law Commission.

41

There

are also other problems with practical benefit such as the moral hazards as
explained by Giancaspro.42 Thus, the concept of practical benefit is very versatile

37 Foakes v Beer [1884] UKHL 1


38 [1993] EWCA Civ 8
39 Musumeci v Winadell Pty Ltd [1995] 34 NSWLR 723 In this case, Williams v Roffey Bros was applied by
Santow J as he found no distinction between the same for more and less for same modifications

40 Phang J.A (n 36)


41 Mindy Chen-Wishart (n 3) 150
15

and if courts do not limit it, the lines between gratuitous and enforceable promises
would be eroded.
Promissory estoppel could be used in replacement of consideration to avoid
the problems arising from the concept of practical benefit. The purpose of
promissory estoppel is to prevent an unjust departure by one person from an
assumption adopted by another on the basis of some act or omission which, unless
the assumption be adhered to, would operate to that others detriment 43 and thus in
a variation of a unilateral contract where performance of an existing legal duty is
unenforceable, promissory estoppel may be able to supply an alternative method to
enforce the promise.44 This being said, by using promissory estoppel instead, a
promise to accept less can also be enforced and as such overcomes the problem
with the limitations of practical benefits. For an example in Collier v P & MJ Wright
(Holdings) Ltd45 , though the courts acknowledged that the agreement to accept part
payment of a debt was not enforceable 46, they considered the appellants submission
regarding using promissory estoppel to enforce the promise. Although there was a
pre-existing duty, the fact that the defendants had agreed to accept part payment of
the debt, which then led to reliance upon that promise makes the promise

42 Mark A. Giancaspro, For Your Consideration: Old Rules, Practical Benefit and a New Approach to
Contractual Variation, (2014), 162
<https://digital.library.adelaide.edu.au/dspace/bitstream/2440/84690/8/02whole.pdf> accessed 24 December
2015

43 Thompson v Palmer [1993] 49 CLR 507,547 (Dixon J)


44 Je Maintiendrai Pty Ltd v Quaglia [1980] 26 SASR 101
45 [2008] 1 WLR 643
46 Pinnels Case [1602] 5 Rep 117
16

enforceable.47 Similarly in Williams v Roffey Bros, the courts could have used
promissory estoppel but did not for two main reasons, one of them being that it was
not raised during trial.48 Secondly, the doctrine was rejected because of the
underdevelopment of the doctrine to contract modification scenarios. 49 Following the
precedent

in Central London Property Trust v High Trees House Ltd 50,

promissory estoppel cannot be used as a cause of action and as such, it may not be
a solve the problem in consideration; unless the UK courts were to follow Australian
courts in allowing promissory estoppel to be used as a cause of action too.
In Waltons v Maher, Waltons were estopped from going back on their
promise to the Maher. The judges of this case had unanimously allowed promissory
estoppel to be used as a cause of action as there was a detrimental reliance
suffered. Maher had adopted an assumption that the contract was sure to be made
based on Waltons failure to reply promptly and that they had remained silent when
they were aware that Maher had started performing the contract terms. As such, the
performance of work by Maher would cause them to suffer detriments if Waltons
were to go back on the promise, which they did later on. Hence, it is seen that the
decision to allow Maher to rely on promissory estoppel was fair to them although it
47 This was decided and explained by Lady Justice Arden that The facts of this case demonstrate that, if (1) a
debtor offers to pay part only of the amount he owes; (2) the creditor voluntarily accepts that offer, and (3) in
reliance on the creditors acceptance the debtor pays that part of the amount he owes in full, the creditor will, by
virtue of the doctrine of promissory estoppel, be bound to accept that sum in full and final satisfaction of the
whole debt. For him to resile will of itself be inequitable. In addition, in these circumstances, the promissory
estoppel has the effect of extinguishing the creditors right to the balance of the debt

48 This was mentioned by Lord Justice Russel in his judgement whereby he mentioned that He would have
welcomed the development of [this line of] argument, if it could have been properly raised during the trial

49 Syros Shipping Co SA v Elaghill Trading Co [1980] 2 Lloyds Rep 390 Glidewell LJ cited this case in his
judgement as in this case, it was held that the owners were suing based on a naked promise and were using
estoppel as a cause of action and not as a shield

50 n 7
17

was used as a sword, not a shield. This was also accepted in other jurisdictions like
New Zealand and Canada.

51

However, if UK courts were to follow suit with this

development and replace consideration, the Court of Appeal in Baird Textile


Holdings Ltd v Marks and Spencer plc 52 held that it would be up to House of Lords
to do so. Nevertheless, there are arguments against the adoption of promissory
estoppel in replacement of consideration.
Elizabeth Cooke argued that UK courts should not adopt a reliance based
approach towards relief like Australia 53 and listed reasons to support her argument.
Firstly, she argued that adopting a reliance approach towards relief would cause
more confusion and weaken estoppel as a whole. However, it was rebutted that
adoption of promissory estoppel would be more coherent as the High Court of
Australia gave clear guidelines to use equitable estoppel as a remedy thus solving
the previous problems in estoppel. 54 She also argues that the reliance based theory
is inconsistent with restitution law as courts may grant restitutionary remedies
sometimes. This was rebutted again as Australias jurisdictions had mentioned that
they would only do so in rare occasions when restitution interest coincides with
reliance interest. But cases like these are rare and as such, should not be a worry for
UK courts. She continues to argue that the law of contract is flexible enough to

51 Burbery Mortgage Finance and Savings Ltd v Hindsbank Holdings Ltd [1989] 1 NZLR 356 ; Gilbert Steel Ltd
v University Construction Ltd [1973] 36 DLR (3d) 496

52 [2001] EWCA 274


53 E Cooke, Estoppel and the Protection of Expectations [1997] 17 LS 258
54 Andrew Robertson, Reliance and Expectation in Estoppel Remedies [1998] 18 LS 360 Here, Robertson
provided that Australian courts had distinguishing the purpose of estoppel which is to protect reliance loss, not
expectation loss

18

cover reliance which has not been bargained for 55 and that an expectation remedy
should be used to remedy breach of promises that are relied upon. However,
Robertson stated that equity is wider than contract and that expectation damages
may not apply in relied- upon promises as courts intervene in such promises to
prevent harm resulting from a reliance on others conducts and thus, reliance based
approach should be adopted.56 There is also fear of inconsistency with previous
decisions where claimants had difficulty in proving value of reliance but Australian
courts have proven contrary to this issue.57 As such, using promissory estoppel could
be better than consideration in enforcing promises.
Conclusively, UK courts should limit the scope of consideration and widen that
of promissory estoppel to balance out the pros and cons in both doctrines
respectively. Whether or not they should follow Australia and replace consideration
completely is a largely debatable matter whereby the decision must me slowly
brought about and not rushed through. Hence, gradual steps to remedy the issues of
consideration should be taken while the doctrine of promissory estoppel should be
increasingly adopted at a reasonable pace in order to see the full effects on whether
the promissory estoppel is a better alternative to consideration.

55 Ibid 52,
56 P Parkinson, Equitable Estoppel: Developments after Walton Stores (Interstate) Ltd v Maher [1990] 3 J
Contract Law, 50,59; P D Finn Equity and Contract in P D Finn (ed) Essays on Contract (Sydney, Law Book
Co, 1987) as cited by Robertson p.365

57 Commonwealth v Verwayen [1990] HCA 39 In this case, Australian courts used the approach that they are
not only required protecting reliance loss, but also needing to provide a remedy which is minimally needed to
prevent detrimental reliance. This will not affect the result in most cases, only in those where the value of
claimants expectations is disproportionate to their reliance loss

19

Bibliography
Textbooks
1. Burrows A, A Casebook on Contract (4th edn, Hart Publishing 2013)
2. McKendrick E, Contract Law-Text, Cases, and Materials (4th edn, Oxford
University Press 2010)
3. N.Adams J and Brownsword R, Understanding Contract Law (5th edn, Sweet and
Maxwell 2007)
4. Smith JC, Smith & Thomas: A Casebook on Contract (11th edn, Sweet & Maxwell
2000)
5. Stone R, The Modern Law of Contract (11th edn, Routledge 2015)
6. Treitel GH, An Outline of the Law of Contract (5th edn, Butterworths 1995)
7. Wishart M-C, Contract Law (3rd edn, Oxford University Press 2010)

Cases
1. Antons Trawling Co v Smith [2003] 2 NZLR 23
2. Baird Textile Holdings Ltd v Marks and Spencer plc [2001] EWCA 274
3. Burbery Mortgage Finance and Savings Ltd v Hindsbank Holdings Ltd [1989] 1
NZLR 356
4. Central London Property Trust v High Trees House [1947] 1 KB 130
5. Chappell & Co v Nestle Co Ltd [1960] AC 87
6. Collier v P & MJ Wright (Holdings) Ltd [2008] 1 WLR 43
7. Combe v Combe [1951] 2 KB 215
8. Commonwealth v Verwayen [1990] HCA 39
9. Currie v Misa [1875] LR 10 Ex 153
10. D & C Builders v Rees [1966] 2 QB 617
11. Foakes v Beer [1884] UKHL 1
12. Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 S.L.R 332 (CA)
13. Gilbert Steel Ltd v University Construction Ltd [1973] 36 DLR (3d) 496
14. Hughes v Metropolitan Railway [1877] 2 AC 439
15. Je Maintiendrai Pty Ltd v Quaglia [1980] 26 SASR 101
16. Jones v Padavatton [1979] 1 WLR 328
17. Musumeci v Winadell Pty Ltd [1998] 34 NSWLR 723
18. New Zealand Shipping Co Ltd v AM Satterhwaite & Co Ltd [1975] AC 154
19. Pao on v Lau Yiu Long [1979] 3 All ER 65 Privy Council
20. Pinnels Case [1602] 5 Rep 117
21. Re Selectmove Ltd [1993] EWCA Civ 8
22. Stilk v Myrick [1809] 170 ER 1168
23. Syros Shipping Co SA v Elaghill Trading Co [1980] 2 Lloyds Rep 390
24. Thompson v Palmer [1993] 49 CLR 507,547
25. Tweddle v Atkinson [1861] EWHC QB J57
20

26. Waltons Stores (Interstate) Ltd v Maher [1998] 164 C.L.R 387 (H.C.A)
27. Ward v Byham [1956] 1 WLR 496
28. Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1
29. Williams v Williams [1957] 1 WLR 148
30. Woodhouse AC Israel Cocoa SA v Nigerian Produce Marketing Co Ltd [1972] AC
941

Articles and Online Journals


1. Atiyah PS, Essays on Contract (Clarendon Press Oxford)
2. Cartwright J, Protecting Legitimate Expectations and Estoppel in English Law
<http://www.ejcl.org/103/art103-6.pdf> accessed 24 December 2015
3. Chen-Wishart M, Consideration: Practical Benefit and the Emperors New
Clothes [1997] Good Faith and Fault in Contract Law 123
4. ChenWishart M, In Defence of Consideration (2013) 13 Oxford University
Commonwealth Law Journal 209
5. Coote B, Consideration and Benefit in Fact and in Law (1990) 3 Journal of
Contract Law
6. Giancaspro MA, For Your Consideration: Old Rules, Practical Benefit and A New
Approach to Contractual Variation
<https://digital.library.adelaide.edu.au/dspace/bitstream/2440/84690/8/02whole.p
df> accessed 24 December 2015
7. Lunney M, Towards a Unified Estoppel-The Long and Winding Road [1992]
Conv 239-251
8. Robertson A, Reliance and Expectation in Estoppel Remedies (1998) 18 Legal
Stud 360
9. Wishart MC, Consideration and Serious Intention [2009] SSRN Electric Journal
10. Wishart MC, A Bird in the Hand: Consideration and One-Sided Contract
Modifications
21

<https://www.academia.edu/949060/A_Bird_in_the_Hand_Consideration_and_O
ne-Sided_Contract_Modifications> accessed 24 December 2015
11. Yan NC and Dennis, Does the Doctrine of Promissory Estoppel Alleviate the
Unfair Effect of Consideration?
<https://www.academia.edu/2301115/Does_the_Doctrine_of_Promissory_Estopp
el_Alleviate_the_Unfair_Effect_of_Consideration> accessed 24 December 2015
12. EQUITABLE ESTOPPEL (2009)
<http://sydney.edu.au/lec/subjects/equity/materials%20SUMMER%20200910/Radan%20&%20Stewart%20Ch%2012.pdf> accessed 24 December 2015

22

List of References
Textbooks
1. McKendrick E, Contract Law-Text, Cases, and Materials (4th edn, Oxford
University Press 2010)
2. N. Adams J and Brownsword R, Understanding Contract Law (5th edn, Sweet
and Maxwell 2007)
3. Treitel GH, An Outline of the Law of Contract (5th edn, Butterworths 1995)
4. Wishart M-C, Contract Law (3rd edn, Oxford University Press 2010)

Cases
1. Antons Trawling Co v Smith [2003] 2 NZLR 23
2. Baird Textile Holdings Ltd v Marks and Spencer plc [2001] EWCA 274
3. Burbery Mortgage Finance and Savings Ltd v Hindsbank Holdings Ltd [1989] 1
NZLR 356
4. Central London Property Trust v High Trees House [1947] 1 KB 130
5. Chappell & Co v Nestle Co Ltd [1960] AC 87
6. Collier v P & MJ Wright (Holdings) Ltd [2008] 1 WLR 43
7. Combe v Combe [1951] 2 KB 215
8. Commonwealth v Verwayen [1990] HCA 39
9. Currie v Misa [1875] LR 10 Ex 153
10. D & C Builders v Rees [1966] 2 QB 617
11. Foakes v Beer [1884] UKHL 1
12. Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 S.L.R 332 (CA)
13. Gilbert Steel Ltd v University Construction Ltd [1973] 36 DLR (3d) 496
14. Hughes v Metropolitan Railway [1877] 2 AC 439
15. Je Maintiendrai Pty Ltd v Quaglia [1980] 26 SASR 101
16. Jones v Padavatton [1979] 1 WLR 328
17. Musumeci v Winadell Pty Ltd [1998] 34 NSWLR 723
18. New Zealand Shipping Co Ltd v AM Satterhwaite & Co Ltd [1975] AC 154
19. Pao on v Lau Yiu Long [1979] 3 All ER 65 Privy Council
20. Pinnels Case [1602] 5 Rep 117
21. Re Selectmove Ltd [1993] EWCA Civ 8
22. Stilk v Myrick [1809] 170 ER 1168
23. Syros Shipping Co SA v Elaghill Trading Co [1980] 2 Lloyds Rep 390
24. Thompson v Palmer [1993] 49 CLR 507,547
25. Tweddle v Atkinson [1861] EWHC QB J57
26. Waltons Stores (Interstate) Ltd v Maher [1998] 164 C.L.R 387 (H.C.A)
23

27. Ward v Byham [1956] 1 WLR 496


28. Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1
29. Williams v Williams [1957] 1 WLR 148
30. Woodhouse AC Israel Cocoa SA v Nigerian Produce Marketing Co Ltd [1972] AC
941

Articles and Online Journals


1. Atiyah PS, Essays on Contract (Clarendon Press Oxford)
2. Chen-Wishart M, Consideration: Practical Benefit and the Emperors New
Clothes [1997] Good Faith and Fault in Contract Law 123
3. Giancaspro MA, For Your Consideration: Old Rules, Practical Benefit and A New
Approach to Contractual Variation
<https://digital.library.adelaide.edu.au/dspace/bitstream/2440/84690/8/02whole.p
df> accessed 24 December 2015
4. Lunney M, Towards a Unified Estoppel-The Long and Winding Road [1992]
Conv 239-251
5. Robertson A, Reliance and Expectation in Estoppel Remedies (1998) 18 Legal
Stud 360
6. Yan NC and Dennis, Does the Doctrine of Promissory Estoppel Alleviate the
Unfair Effect of Consideration?
<https://www.academia.edu/2301115/Does_the_Doctrine_of_Promissory_Estopp
el_Alleviate_the_Unfair_Effect_of_Consideration> accessed 24 December 2015
7. EQUITABLE ESTOPPEL (2009)
<http://sydney.edu.au/lec/subjects/equity/materials%20SUMMER%20200910/Radan%20&%20Stewart%20Ch%2012.pdf> accessed 24 December 2015

24

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