10. Pre-contractual Remeedies II

Question 1

Brewer Street

Answer 1

no PE because person making promise was prospective TENANT

PE is limited to promises to give someone a right in land

Question 2

Lloyd v Dugdale

Answer 2

PE

• reliance on D’s promise (man of my word)
• detriment

Question 3

Thorner v Major

Answer 3

Lord Walker, 3 elements:

1. representation or assurance
2. reasonable reliance by C
3. detriment to C

Question 4

Walton v Walton

Answer 4

mother promises son farm

• PE
• contract and estoppel is different so the promise required is different

CONTRACT: immediately binding duty
PE: look backwards and evaluate right action

no contract promise - lots of implied conditions (e.g. if I get sick you can’t have it)

but yes PE promise - estoppel can be subject to ill-defined qualifications because it doesn’t impose immediately binding duty

Question 5

Thorner v Major (promise)

Answer 5

promise in contract: certainty
promise in PE: assurance that is “clear enough” (clarity depends on context)

PROMISE MUST BE REASONABLE FOR C to have understood as SERIOUSLY INTENDED by D to have been CAPABLE OF BEING RELIED ON by C

Question 6

Leyton v Martin

Answer 6

love letter to ex-girlfriend

- not seriously intended to be reasonably relied on

Question 7

Cobbe v Yeoman’s Row (PE)

Answer 7

Scott says estoppel = used to prevent parties stating affairs even if it isn’t true

• this is true for traditional estoppels
• not true of PE

THORNER - PE is a cause of action (not traditional estoppel), Lord Scott was wrong in Cobbe

Question 8

Thorner v Major (domestic/commercial)

Answer 8

same test applies in com and Dom situations

BUT if arm’s length (e.g. Cobbe) more is required to be a promise

if family - promise doesn’t require much (nod and wink)

Question 9

Achom v Lalic

Answer 9

“courts musst beware of accepting PE claims too readily in commercial contexts” (Neway J)

Question 10

Sutcliffe v Lloyd

Answer 10

promise: no need for promise to be believed to be a legally binding promise

PE does not impose duty to perform so C doesn’t have to believe there is a contract already

Question 11

Holy v Cromer

Answer 11

PE in commercial context = successful

C only encouraged and that was fine (problematic)

Question 12

Cobbe v Yeoman’s Row (promise)

Answer 12

promise too vague to be capable of being reasonably relied on by C

• didn’t include sell to C or company
• didn’t include how security would be obtained for overage provision

C cannot have reasonably understood promise was capable of being relied on

too many outstanding matters = too vague

Question 13

Kinane v Mackie

Answer 13

lending money with security

PE:

• D under duty to grant promised charge
• enough of a promise

Question 14

Walton Stores v Maker

Answer 14

parallel to Brewer Street

PROMISE TO TAKE LEASE = PE possible!

australian

Question 15

Salvation Army v W Yorkshire

Answer 15

D promised to buy land and pulled out

• first instance UK said yes PE
• unclear case though because deal involved C buying land too

Question 16

Baird Textiles v M&S

Answer 16

NO PE BEYOND LAND

• only HL can do this
• even on facts, no promise anyway (just based on past practice)

Question 17

Western Fish v Penwith

Answer 17

NO PE BEYOND LAND

• but here, C wouldn’t have won anyway
• no promise (promise to give PP cannot give rise to private law liability)
• no reliance

Question 18

Combe v Combe

Answer 18

IF PE EXPANDED:

Lord Denning - wouldn’t work here anyway

• no detriment (wife can still apply for maintenance)
• unconscionable (wife waited too long)

Lord Walker - unconscionability is a useful rule that can limit D’s liability