The Traditional Method of Making a Deed - Research Paper Example

Promissory Estoppel and the Principle of Consideration Yvonne L. Academia Research Swamped with complaints againstnon-compliance of promises in the hope of leaning on the promissory estoppel for the enforcement of promises, the law has enacted provisions that set certain acceptable limits. Unjust claims that meant to enrich the other at the expense of the other party whose intentions does not contribute to the actual unacceptable performance is explained. Promissory Estoppel: Principles of Consideration Introduction In old English society, apparent disregard of a promise will not hold water unless the agreement or promise is either supported by deed or consideration. Particularly in the middle ages, the traditional method of making a deed was attaching a seal to the document, signed, sealed and hand-delivered that denotes and is often referred to as a "promise under seal". The Law of Property Act 1989 under Miscellaneous Provisions has decreed that there is no longer a requirement for a seal; however a signature must be witnessed. Thus, it is understood that promises covered by a deed demonstrates the seriousness of the act and is therefore binding. When one enters into a promise and reneges on the deed or by not being able to do what was promised; there is equitable forbearance or waiver in McKendrick1. One cannot sue, under the law of England for promissory estoppel unless a certain consideration would have to be received from the other party. The doctrine of consideration stresses the giving of something valuable in return for a promise and supports that under an enforceable promise to be economically gratuitous2; a nominal consideration is an essential formality. Although some courts have been faced with this dilemma, nominal amounts which do not really have an economic value have been considered and legally acceptable3. At best, consideration is considered a convenient device for refusal of the enforcement of a promise. Basically, when one terminates an agreement to the detriment of another, a promissory estoppel lies in hand as a defense to support the promise according to Smith4. Under this rule, a claimant who incurs a detriment by doing an act, making a promise however small, provided that it has been agreed that she should do the act and receives something in return under a limited legal principle can be sued for promissory estoppel. In Combe v. Combe5, the Court of Appeal held that the doctrine of promissory estoppel cannot be used to create a cause of action where a husband's promise to pay alimony to the wife at 100 p.a. does not give her the right to sue for that money even though she had relied on the promise. In a society where moral conventions allow a promisor to enter into a negotiation, a promisor is bound to his promise. The law however stresses that enforcing promises is a right when they are given in exchange for other promises or consideration6. The main purpose of implanting consideration is to discourage improper pressure and coercion and to distinguish the nature of the promise. It is also interesting to see how the doctrine of promissory estoppel brings the law of consideration into sharp relief. Although it is not overtly recognized by the English system, many of the reasons for requiring consideration do not apply to the situation of variation as in Williams v Roffey Bros & Nicholls7. The basic position still considers however, the doctrine of promissory estoppel varying from only one side of the contract and can be divided into two types: on the one hand are variations whereby one party's obligations are increased (that party promises to do more or pay earlier), and on the other are variations whereby one party's obligations are decreased (waiver cases in which that party is allowed to do less or pay later)8. In a case, a plaintiff may claim a number of reasons why the defendant should honor a contract or pay damages. The defense must demonstrate that the plaintiff's own statements go against established facts in order to claim a promissory estoppel. There must also be evidence that the defendant based his actions strictly by reliance of the truth and that he has in fact suffered damages because of it. In its full summation according to English law enforcement, it is generally left up to the discretion of the individual judge hearing the merits of the case. In Australia, Spence9 contends that unconscionability should form the basis for determining liability in estoppel and argues that the focus of the doctrine must be on the wrongfulness of the behaviour of the party against whom the estoppel is sought. Any consideration is moot and academic in high favor rather on the conduct of the party seeking to establish the estoppel. Carefully, Australian law stands on limiting estoppel from any rivalry on induced assumption and morally believes that relief in contract is available as of right, while relief in estoppel is discretionary10. In the many jurisdictions of the United States, promissory estoppel is generally an alternative to consideration as a basis for enforcing a promise. It is also sometimes referred to as detrimental reliance where the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promise. It does not induce such action or forbearance if injustice can be avoided only by enforcement of the promise and treated under a complexity of laws in Cohen v. Cowles11. The messy understanding of promissory estoppel in conclusion explains the various requirements of promissory estoppel are still hard to state and even harder to apply. It is suggested that the basic ideas coupled with the understanding of the moral rules on contract that requires the principle of consideration and promissory estoppel can then be used. Also in effect, any act to reduce the obligations already owed by the promisee to the promisor can be used but not to increase his obligations or in creation of new ones. The promisee must show a particular detriment that has been suffered in order to see the merits of a promissory estoppel. Also, it is important to note that even what is required for a promissory estoppel to arise is distinguishable from a binding contractual variation, and this is true even though detriment is good consideration. -Part Two- Law and jurisprudence dictates that losses arising from the frustrated contracts is justified as, "according to the usual course of things" and in "contemplation of both parties at the time the contract was made". A basic requirement common in contracts, of course, is that an injury must have been sustained by the claimant. The actual loss under judicial discretion is a manifestation yet an assumption to be assessed under no accepted principle but upon which answers may be based in Smith (1997)12. Setting the price and deciding in how much effort to expend in order to perform may be up to the value of an ordinary loss that was contemplated if in fact it did not occur. In cases on the death of a party, the principle pointed in Taylor v. Caldwell13 states that, "contracts in which the performance depends on the continued existence of a given person or thing". When there is an implied impossibility of performance arising from the perishing of the person or thing, the performance is then deemed excusable. The contractual obligation is dependent on the existence of a particular object under due consideration such that in Denny et al. v James Fraser14, a contract for the sale of timber during wartime is not enforceable as trading was considered illegal. Exercising the option endangers the enforcement of the contract so this option cannot be fulfilled albeit justifiable in its non-compliance. Unforeseen events used as a reason for frustrated contracts does not necessarily frustrate it as cited in Davis Contractors v Fareham15. Fortuitous events such as shortages that claims entitlement for recovery by way of a "quantum meruit" explains that unforeseen events makes a contract more onerous than anticipated but does not necessarily frustrate it and is cited in Tsakiroglou v Noblee Thorl16 that provides and explanation that certain circumstances was not fundamental and suggested that a breach of contract is more usable under this terms. Guided by the principles of "quantum meruit", express agreements and fixed in a contract shall entitle the aggrieved to claim for what is agreed in stipulation. Where there is an actual loss of profit, mere speculation cannot prove it alone. (Modern Law Review, 1998:76). Thereby one has to prove the soundness of such claim before any treatment as to its viability will be entertained. Effects of the amenity value overriding the requirement of remoteness will therefore be based on the loss incurred by the injured party but not based on the gain by the party in breach (Modern Law Review, 1998). The cost of cure for to meet the standard expectation contained in the contract shall be borne by the one at fault who refused to carry out the cost of a certain reinstatement or an allowance must be made for the expense which in building construction cases may have been saved by the contractor. Any amount of contribution does not point causation of culpability but rather treated as an important factor in deciding responsibility that which is just and equitable17. References Negligent Valuations and a Drop in the Property Market.(1998) Modern Law Review 68, 76. McKendrick, E. 2000. Contract Law, 4rth ed. Basingstoke: Macmillan United Kingdom. Law of Property Act 1989. Smith, S. (1997). Performance, Punishment and the Nature of Contractual Obligation. Modern Law Review, 60, 360. United Kingdom. Farley and Skinner[2001] in UK HL 49, [2002] 2 AC 732. United Kingdom. Combe v. Combe [1951] 2 KB 215. United Kingdom. Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1. United Kingdom. Tsakiroglou v Noblee Thorl [1961] 2 All ER 179. United Kingdom. Taylor v Caldwell (1863) 3 B&S 826 United Kingdom. Denny, Mott & Dickinson v James Fraser [1944] AC 265 United Kingdom. Davis Contractors v Fareham UDC [1956] AC 696. United States. Cohen v. Cowles Media Co. (90-634), 501 U.S. 663 (1991). Poole, J. Casebook on Contract Law, 5th ed. London: Blackstone. Furmston, M.P. 2001. Cheshire, Fifoot and Furmston's Law of Contract. 14th ed. London: Butterworths. Michael Spence. 1999. Protecting Reliance: The Emergent Doctrine of Equitable Estoppel. Australia. Read More