UCL FACULTY OF LAWS

Dr Florian Wagner-von Papp

Seminar 9: Alternatives for consideration revisited: England, the U.S. and Australia – Three countries
divided by a common law?

I. When do the courts find consideration?

1. England:
- benefit-detriment test: consideration consists in either a detriment to the
promisee or a benefit to the promisor; courts do not consistently require the
promisor to seek the benefit that is interpreted to be the consideration, as
would be required by the bargain-test as it is applied in the US;
- English courts have sometimes gone a long way in finding some element of
benefit to the promisor or detriment to the promisee (or even the mere
possibility of a detriment) if they want the promise to be enforceable. Treitel has
called this “invented consideration” (Peel Treitel The Law of Contract 12th edn
(Sweet & Maxwell 2007) para 3-009); he correctly points out that the US can
afford to use the (usually stricter) bargain test, because they have a wider
doctrine of promissory estoppel (see below).
2. US:
- While the US started off with the benefit-detriment test (cf eg Hamer v Sidway),
today the bargain test is used. For a formulation of the bargain test, see § 71 of
the Restatement (Second) of Contracts:
Ԥ 71 Requirement of Exchange; Types of Exchange
(1) To constitute consideration, a performance or a return promise must
be bargained for.
(2) A performance or a return promise is bargained for if it is sought by the
promisor in exchange for his promise and is given by the promisee in
exchange for that promise.
(3) ...
(4) The performance or return promise may be given to the promisor or to
some other person. It may be given by the promisee or by some other
person.’
- moral consideration? See Webb v. McGowin, 27 Ala.App. 82 (1936) (but note:
there is some vacillation in whether or not to find moral consideration to be
good consideration)

II. Can estoppel be a “substitute” for consideration?

1. England
a. The ‘traditional’ estoppel was the so-called ‘estoppel by representation’ or ‘estoppel
in pais’; this category pertained to facts that were represented by the representor
and believed by the representee. In contrast, the ‘promissory estoppel’ discussed
below relates not to facts, but to promises.
Estoppel by representation= a person who makes a representation of existing facts
which induces another party to act to his detriment in reliance on the
representation- ONLY operates as a defence and DOES NOT create a cause of action
b. Central London Property v High Trees House [1947] 1 K.B. 130: Denning J. (as he then
was) formulates in an obiter dictum the doctrine of promissory estoppel (ostensibly
based on Hughes v Metropolitan Railway the leading case on promissory estoppel
(1877) (HL)), stating that promises intended to be binding, intended to be acted on,
and in fact acted on, cannot be a cause of action, but that the promisor can be
estopped from acting inconsistently with this promise; considers that the promise in
the case at hand was binding as long as the conditions prevailed which existed when
the promise was made, ie that only the flats were only partially let (leaving open the
possibility of ending the effect of the estoppel on notice).
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In Central London Property v High Trees House (1947) = A landlords promise to
reduce a tenants rent will be binding without consideration if the tenant has acted
on the promise in such a way that it would be inequitable for the landlord to go
back on the promise
*the claimants let a block of flats in London to the defendants on a 99-year lease at
an annual rent of 2500. In 1940 the defendants discovered that, as a result of the
outbreak of the war and evacuation of people from London , they were unable to let
many of the flats. The claimants agreed to reduce the rent to 1250. This promise to
accept a reduced rent was unsupported by consideration. At the end of the war in
1945 the market had returned to normal and the claimants demanded that the
defendants resume payment of the entire rent from 1945,but the defendants
refused to pay. Lord Denning held that the claimants were entitled to demand the
entire rent from the date when the flats became fully let, early 1945 when the
reduction ceased to apply. He states 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.”
* on this judgment, which upheld the reduction of rent under a lease during war, the
equitable doctrine of promissory estoppel was founded. Under that doctrine ,
promises to reduce sums owing under a contract must be regarded as valid even if
they are unsupported by consideration, if they are intended to alter the legal
relationship and to be acted upon by parties, unless ( subsequent cases have added)
it is equitable for the promissory to go back on his promise.
* In the context of promises to accept part payment of a debt, it seems that the
doctrine has been accepted by the Court of Appeal (Collier v P& MJ Wright).
However, even in this context it is not uncertain whether or to what extent
promissory estoppel modifies Foakes v Beer- which is a decision of House of Lords
and therefore binding on lower courts until the HL itself overrules it, or Parliament
passes legislation to that effect.
* it is noted in the High Trees case by Lord Denning that “the courts have not gone
so far as to give a cause of action for breach of such a promise, but they have
refused to allow the party making it to act inconsistently with it”. Promissory
estoppel cannot be used to make binding a promise to create a new right was
confirmed by the Court of Appeal in Combe v Combe (1951).Promissory estoppel
only helps to complete some other cause of action which would otherwise be
incomplete.

Requirements/effects for promissory estoppel:

(1) clear and unequivocal promise (Woodhouse AC Israel Cocoa v Nigerian Produce
Marketing (1972,HL); but: probably the same test as for contractual promises, ie
the promise need not be express, but can be implied)- there must be a clear and
unequivocal promise as to future conduct which is intended to affect the legal
relations between the parties and which indicates that the promisor will not
insist on his strict legal rights against the promise.
* this element is necessary for the protection of the promisor- he should not be
required to insist upon their legal rights in order to protect them; rather the law
provides that promisors would only lose their contractual rightswhen they
clearly and unequivocally promise that they will give them up (either in whole or
in part)
(2) the promisee must have relied on the promise (controversial whether the
reliance must be detrimental to the promisee; see, eg The Post Chaser [1981] 2
Lloyd’s Rep 695 (QBD) (Robert Goff, J); note that in High Trees itself the reliance
was not detrimental, because they were only asked to pay the rent that they
have contracted to pay.- the promise need not have acted to his detriment
provided that he has altered his position to the extent that it would inequitable
to allow the promisor to go back on the promise made)
* there are dicta which suggest that the promise must have acted to “his
detriment” in reliance upon the promise, but the better view is that it is
sufficient to show that the promisee committed himself to a course of action
which he would not otherwise have adopted
(3) it must be inequitable to go back on the promise (cf D & C Builders v Rees [1966]
2 QB 617 (CA), where it was not inequitable for the promisors to go back on a
promise that was induced by undue pressure)
 (4) Effects:
(i) usually suspensory, not extinctive; either by the (implied) terms of the
promise, or by giving notice, the promisor can usually revert to its
original rights (Tool Metal Manufacturing v Tungsten Electric (1955,
HL)); however, note that at least for past payments, the effect is to
extinguish the rights up until the notice/event; where the promise is to
last forever, the docrine may have a lasting extinctive effect (see esp for
part payment cases Collier v PMJ Wright). There is some confusion in
this area. It is probably correct to say that it depends on how easy it is
for the promisee to restore the status quo ante, and whether the
suspensory effect sufficiently protects his/her reliance. – in cases of post
breach representations or where it is not possible or practible to return
the parties to their original position, then promissory estoppel may
have permanent effects
*the effect of promissory estoppel does not extinguish the promisor’s
rights
*In Hughes v Metropolitan the landlord’s right to enforce the repairing
covenant was not extinguished. It was suspended and could be
resurrected by his giving reasonable notice. But in High Trees the
estoppel had the potential to have permanent effects because Denning
was of the view that the lessors would not have been entitled to
demand the rent waived between 1940-1945
(ii) promissory estoppel does not give rise to a cause of action (Combe v
Combe [1951] 2 K.B. 215 (CA));
(iii) REMEMBER: promissory estoppel has different requirements and
different consequences from consideration; it is not a perfect
substitute.
c. Crabb v Arun District Council [1976] Ch. 179 (CA): Proprietary estoppel can give rise
to a cause of action. -= a party who indicates that he will grant another a right in
property and who encourages the other to act on that assumption in such a way that
the other will lose if the right is not granted will be compelled to do justice
* The Court of Appeal held that the defendants knowing of the plaintiff’s intention to
sell his land in separate portions .led the plaintiff to believe that he would be
granted a right of access at B and, by erecting gates and failing to disabuse him of his
belief, encouraged the plaintiff to act to his detriment in selling part of his land
without reservation over it of any right of way along the road, giving rise to an equity
in the plaintiff’s favour; equity should be satisfied by granting the plaintiff a right of
access at Band a right of way along the road without any payment by the plaintiff.
* Crabb is a case in which the plaintiff was promised an interest in land and so is
generally regarded as a case of proprietary estoppel. That said, it should be noted
that Scarman LJ stated that he did not find “helpful the distinction between
promissory and proprietary estoppel” and in Waltons Stores v Maher Mason CJ and
Wilson J stated that Crabb “was an instance of promissory estoppel”

d. Requirements for proprietary estoppel (see Peel Treitel The Law of Contract, paras
3-120 et seq.):
*No doubt that proprietary estoppel can be used to found a cause of action. Cases of
proprietary estoppel have been divided into two broad categories: a) those which
relate to the situation in which a landowner ‘stands by” while another person
improves his land in the mistaken belief he is the owner of the land b) in these case
the promise relies to his detriment upon the landowner’s promise that he has or will
be given an interest in the land.
Thorner v Major
= Lord Walker identified the three principal ingredients of proprietary estoppel in
the following terms: 1) sufficiently clear and unequivocal representation made or
assurance given to the claimant relating to the acquisition of an interest in property;
particularly an interest in land 2)reasonable reliance by the claimant on the
representation or assurances by the claimant 3)sufficiently substantial detriment
incurred in consequence of his reasonable reliance on that representation or
assurance
*(McKendrick) One point that should be noted about this definition:
representation or assurance must relate to the acquisition of an interest in property
 – this limitation is difficult to understand; why is it that detrimental reliance upon a
promise to create an interest in property can create a cause of action, but that
detrimental reliance upon any other promise cannot do so? No convincing answer
has been provided.

(1) First person ‘acts under a mistake as to the existence or as to the extent of the
rights in or over another’s’ property (usually land, controversial whether
proprietary estoppel can be extended to other property, see Peel, op cit, para 3-
127);
(2) the second person stands by knowing of the first person’s mistake, or even
actively encourages the first person by giving an express or implied promise,
provided that it is reasonable to rely on it;
(3) the first person relies on the ‘promise’ to his detriment, which would make it
unjust or inequitable to go back on the ‘promise’, usually by making expenditures
on the property, or by otherwise conferring some benefit on the second person;
but in some cases, proprietary estoppel was found even though the ‘promisor’
had not received any benefit, and the ‘promisee’ had made no expenditures on
the promisor’s land (see eg Crabb v Arun!); it is unclear whether the reliance
must relate to identifiable property (Peel para 3-129).
(4) Effect: confers an ‘equity’ on the first person; this is an ‘extremely flexible’
remedy, and may eg consist of a conveyance of the fee simple (ie ‘full’ property)
in the property or right that was the subject of the promise; or only a limited
right, such as a right to use the property for life, or for a certain period, or – as in
Crabb v Arun - an easement or licence on terms imposed by the court, giving a
right of access etc.
e. Amalgamated Investment & Property v Texas Commerce International Bank [1982]
Q.B. 84 (CA): estoppel by convention (ie, the facts on which the parties deal were
not represented by one party, and the other relied; rather, both parties assume a
certain state of the world and conduct their affairs on this ‘conventional basis’);
where it would be inequitable for one party to deny the state of the world assumed
by convention, the party may be estopped from doing so. Can be a cause of action.
* The defendant bank provided a loan to a subsidiary company of the plaintiff
company and the plaintiff company provided the defendants with a guarantee which
stated that: “the guarantor will pay to you on demand all moneys which now are or
shall at any times here-after be due or owing or payable to you on any account
whatsoever the principal. For exchange control purposes the money was advanced
not by the defendant bank but by one of the defendant’s subsidiaries. The plaintiff
claimed that its liability was to the subsidiary and not to the bank so that it could not
be liable under guarantee.
* the Court of Appeal held that the plaintiff was liable the plaintiff was liable to
defendant as a matter of interpretation of the guarantee and, in the alternative, on
the ground that the plaintiff was estopped by convention from that it was bound to
discharge the indebtedness of its own subsidiary company to the subsidiary of the
defendant that had advanced the money.
Lord Denning: The parties had entered into the transaction on the assumption that
the plaintiff was so liable and the parties had acted upon the agreed assumption
that a particular state of facts between them is to be accepted as true, each is to
be estopped as against the other from questioning as regards the transaction the
truth of the statement of facts so assumed, when it would be unfair or unjust to do
so.
Brandon LJ: A party cannot in found a cause of action upon an estoppel, but he may
as a result of being able to rely on an estoppel, succeed on a cause of action on
which, without having been able to rely on that estoppel, he would have failed.

f. Collier v P&MJ Wright (Holdings) Ltd [2007] EWCA Civ 1329, [2008] 1 W.L.R. 643: In
part-payment cases (the ‘Pinnel’s case’/Foakes v Beer-scenario), the requirements
for promissory estoppel will practically always be fulfilled; the effect will usually be
extinctive once the debtor has relied.
*The applicant was one of three partners who owed £46000 to the defendant. The
liability of the partners was joint. The applicant alleged that he made an oral
agreement at the end of 2000 with the defendant under which it was agreed that his
 liability should be limited to one third of the judgment debt and that the defendant
would look the other two partners and not to the applicant to recover their share of
the debt. The defendant then claimed that he was entitled to recover the balance of
the judgment debt from the applicant, who relied on the oral agreement he had
reached with the defendant.
*The difficulty that the applicant faced was that, as a result of the rule in Foakes v
Beer the oral agreement was unsupported by consideration. However the Court of
Appeal held that the applicant had established an arguable case that promissory
estoppel might afford him a defence to the claim. It is important to note that the CA
was not asked to decide whether the applicant had a defence based on promissory
estoppel or not. All that the CA had to decide, was that the promissory estoppel
arguably afforded him a defence.
* Arden LJ demonstrates the potential promissory estoppel has to undermine the
rule in Foakes v Beer. Drawing upon the judgment of Lord Denning in D&C Builders v
Rees and upon observation of Couldery v Bartrum the following propostions are
derived:
1) a debtor offers to pay part only of the amount he owes
2) the creditor voluntarily accepts the offer
3) in reliance on the creditor’s 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 on the whole debt. For him to
resile will of itself be inequitable. In these circumstances, the promissory estoppel
has the effect of extinguishing the creditor’s right to the balance of the debt.
* A debtor who pays the promised part of the debt will now ne able to rely upon
promissory estoppel in order to defeat a claim brought by the creditor to recover
the balance of the debt.
*it is important to note the emphasis place by Arden LJ on the need for “true
accord” and for a “voluntary” acceptance by the creditor. However, in the second
judgement by Longmore LJ, he was doubted whether there was a true accord. In his
view the creditor may simply have suspended his right to recover the entire sum
from the debtor for a period of time and not to forgo it permanently. Thus he
concluded, that if the approach advocated by Arden LJ was to followed it is
important that agreements which are said to forgo creditors rights on a permanent
basis should not be too benevolently construed.
* To the extent the analysis of Arden was not entirely shared by Longmore. To this
extent the authority of the case may be questioned. On the other hand it is
consistent with the weight of modern authority in cases such as Williams v Roffey
and it adds further weight to the view of those who believe that , were Foakes v
Beer to be re-considered by the House of Lords today, the case would be decided
differently and the creditor would be prevented from recovering the balance of the
debt- either on the ground that the creditor was estopped from going back on her
promise to accept part of the debt in discharge of the entire debt or on the ground
that the agreement to pay part of the debt was supported by consideration.

g. Cobbe v Yeoman’s Row Management [2008] UKHL 55, [2008] 1 W.L.R. 1752: While
proprietary estoppel can be a cause of action, the promise itself needs to pertain to
a right in property; it is insufficient that there is a promise and that a right in land is
involved.
*The Court of Appeal held that proprietary estoppel could not be simply founded on
unconscionable behavior- According to Scott LJ proprietary estoppel cannot be
prayed in aid to render enforceable a void agreement Walker LJ argued that both
parties knew that there was no binding contract and that either was free to
discontinue the negotiations without liability in equity or law. The claimant was an
experienced property developer and took a commercial risk with his eyes open. He
furthermore, affirmed the principle that the court should be very slow to introduce
uncertainty into commercial transactions by over-ready use of equitable concepts
such as fiduciary obligations and equitable estoppel.
*Cobbe case makes it clear that the doctrine is narrower than many commentators
previously believed it to be. This is so in at least three respects:
1) uncoscionability will no longer suffice of itself to trigger the operation of the
doctrine
 2) the promise must have an expectation of a certain interest in land- if the
expectation is dependent upon the outcome of negotiations between the promisor
and the promisee over the terms on which the promise will acquire an interest in
the land, it is unlikely that the expectation will be sufficiently certain to establish an
estoppel
3) it is highly unlikely that a promise will be able to invoke proprietary estoppel in
the case where he knows that the promise on which he is basing his estoppel is NOT
legally binding- in Cobbe case the property developer sought to claim an interest in
land on the basis of proprietary estoppel. His claim was dismissed on the ground
that he knew that the informal agreement which he had the requirements of s.2 of
the Law of Property (Miscellaneous provisions) Act 1989.- It may be possible for
claimants to do this in ‘domestic cases’ where the parties may have well limited
appreciation of their legal rights and believe that a promise is ‘binding and
irrevocable’ when in law it is not # BUT in commercial context, where parties can be
expected to know when an agreement is binding and when not, this limitation will
significantly curtail the operation of proprietary estoppel

h. see also infra 3b.

2. U.S.
a. Ricketts v. Scothorn, 57 Neb. 51 (1898)
Scothorn was at work when her grandfather gave her a promissory note under
which he promised to pay her $2000 at 6% per annum. On giving her the promissory
note he told her that none of her other children worked and now “you don’t have
to”. Scothorn gave up work in reliance on his promise but, when her grandfather
died, his executors refused to honour his promise. The court held that Where the
payee of such an obligation has been induced to abandon a lucrative occupation in
reliance on the note being paid, and has taken such action in accordance with the
expectation the maker, neither the latter nor his legal representatives will be
permitted to resist payment on the ground that there was no consideration for the
promise.
b. Feinberg v. Pfeiffer, 322 S.W.2d 163 (Mo. App. 1959)
(note that this decision quotes the first Restatement)
= Action on alleged contract by defendant to pay plaintiff a specified monthly
amount for life upon her retirement for defendant’s employ. The court of Appeal
held that plaintiff’s retirement from her lucrative position in reliance upon
defendant’s promise to pay her a pension, and that plaintiff could recover
thereunder even though she had not discovered cancer which made her
unemployable until after defendant had discontinued pension payments.
*promissory estoppel = It is generally true that one who had led another to act in
reasonable reliance on his representations of fact cannot afterwards in litigation
between the two deny the truth of the representations; courts have sought to apply
this principle to the formation of contracts where the promise has suffered
detriment in reliance on a gratuitous promise.
*plaintiff’s subsequent illness was not the ‘action or forbearance’ which was induced
by the promise contained in the resolution. Such action on plaintiff’s part was her
retirement from a lucrative position in reliance upon defendant’s promise to pay her
an annuity or pension.

c. Restatement (2d) of Contracts § 90: “(1) A promise which the promisor should
reasonably expect to induce action or forbearance on the part of the promisee or a
third person and which does induce such action or forbearance is binding if injustice
can be avoided only by enforcement of the promise. The remedy granted for breach
may be limited as justice requires. (2) A charitable subscription or a marriage
settlement is binding under Subsection (1) without proof that the promise induced
action or forbearance.”

3. Australia
a. Walton Stores (Interstate) v Maher (1988) 164 CLR 387 (High Court of Australia): not
proprietary estoppel, because the promise did not relate to a right in the promisor’s
land, and the investment was made not on the promisor’s land. The question was
whether promissory estoppel could act as a cause of action (as under Restatement
(2d) of Contracts § 90 in the US), or whether promissory estoppel could only ‘serve
as a shield’ (as in England and Wales, see Combe v Combe etc)
*The parties were involved in the negotiation of a major leasing and construction
project.. The claimant was the owner of land which he wished to lease to the
defendants. It was also intended that the claimant would demolish the existing
building and erect a new building. The claimant signed the requisite documents and
they were forwarded to the defendant’s solicitor’s for execution and exchange. The
defendants were beginning having second thoughts and instructed their solicitors to
slow down even if they knew that the claimant had commenced working on the
site. Defendants informed him they had decided to withdraw from project. No
exchange has ever taken place. However , the claimant argued that defendants were
estopped from withdrawing from their implied promise to complete the contract.
*defendants argued that the claimant cannot use estoppel to create a cause of
action. There was no pre- existing legal relationship between the parties and
therefore no estoppels could apply.
*The High Court held that promissory estoppel could create a cause of action; it
could act as a sword as well as a shield. Such a proposition was NOT irreconcilable
with the doctrine of consideration, because the function of the estoppels was not
‘to make a promise binding’ or to make good the expectations engendered by a
promise, BUT to ‘avoid the detriment’ which the promise would suffer as a result
of the unconscionable conduct of the promisor in departing from the terms of his
promise. A simple example to illustrate the distinction is the following: someone
promises to pay me £500 and I act on that promise to my detriment by spending
£300 which I would not otherwise have spent. .a) Enforcement of the promise
would give me £500 (protection of my expectation interest) b) whereas ‘avoiding a
detriment’ would give me £300 (protecting my reliance interest). The former is the
province of law of contract and demands consideration, the latter is the province of
estoppels and so does NOT require consideration. To protect my reliance interest
does not require consideration.
* The High Court also rejected the argument that it was necessary to establish a pre-
existing legal relationship between the parties before estoppel could be invoked.
The action of the promisor in going back upon his promise can be as
unconscionable where there is no pre-existing legal relationship between the
parties as when there is such a relationship.
* Three principal difficulties if the English courts chose to follow Walton Stores v
Maher
1) When it is unconscionable for a promisor to go back upon his promise? A failure
to fulfill a promise does not of itself amount to unconscionable conduct- mere
reliance upon a promise will not suffice to bring promissory estoppel- something
more must be established: creation or encouragement that a contract will come
into existence or a promise will be performed and that the other party relied on that
assumption to his detriment to knowledge of the first party.
2) The second difficulty relates to the remedies available to the court in estoppels
cases. According to Brennan J the aim of the remedy was to protect the reliance
interest of the claimant and NOT the expectation interest. But if one looks to the
remedy actually awarded in Walton Stores case, will observe that damages were
awarded on the basis that the defendants were stopped from going back on their
promise that the completion would take place, thus essentially protecting the
claimant’s expectation interest.
3) Should it be a unified doctrine of estoppel? In England there is no unified doctrine
of estoppel nor any overarching principle. There is an obvious common theme
running through the estoppels cases and that relates to the rights of those who rely
(to their detriment) on promises which are not otherwise enforceable. These rights
should be analysed irrespective of whether the promise relates to the formation of
the contract- the modification of a contract- or the creation of an interest in land or
other property. The basic choice which has to be made by the law is whether such
protection as the law affords should be conferred within the law of wrongs (with the
focus on any unconscionable conduct of the defendant and the remedy aiming to
protect the claimant’s reliance interest) or whether protection should be conferred
within the law of contract (with the emphasis being placed on the promise and the
 detrimental reliance upon it by the claimant and the remedy aiming to protect
claimant’s expectation interest)

b. The English reaction to Walton Stores: Baird Textiles Holding v Marks & Spencer
[2001] EWCA Civ 274, [2001] CLC 999 para 98 (per Mance LJ, as he then was): It is
not impossible that an English court in the Walton Stores case ‘could not and would
not reach a result similar to that reached in the Walton Stores case, even if not by
the same reasoning. The agreement [in Walton Stores] was merely unenforceable
for want of compliance with the statute. It may be arguable that recognition of an
estoppel here would not be to use estoppel “as giving a cause of action in itself”, and
it would certainly not be to undermine the necessity of consideration. Rather, it
would preclude the potential lessee from raising a collateral objection to the binding
nature of the agreed lease.’ (note that this is not uncontroversial)

*Thus professor Treitel has stated that it gives rise to the difficulties that there
appear to be no clear limits to its scope and that this lack of clarity is a regrettable
source of uncertainty. The doctrine is hard to reconcile with a number of
fundamental principles of English law, such as the non enforceability of informal
gratuitous promises (even if relied on) and the rule that there is no right to damages
for a wholly innocent non- contractual representation.
Waltons Stores is a difficult case for English lawyers as it raises in stark form the
problem that English law has in terms of justifying the difference in principle that
currently exists between proprietary and promissory estoppels (in that ONLY
proprietary estoppel can create a cause of action. This difference in treatment
cannot be justified. Professor Treitel states that it is not made at all clear in the
English cases. One possible explanation is that the proprietary estoppels cases
originally involved an element of unjust enrichment though some modern cases
apply the doctrine even in the absence of this factor, while promissory estoppels
could arise from mere action in reliance by the promise; and that this was regarded
as a less strong (than unjust enrichment) for relief.(according to McKendrick-this is
not a convincing explanation though)

McKendrick’s book:

*Defining estoppel: Combe v Combe= it cannot be used to create a cause of action

where none existed apart from the estoppel. Thus is commonly stated that the
estoppel must relate to the existing legal rights on the promisor; there must be a
pre-existing legal relationship between the parties under which the promisor
promises to give up some of his rights under that relationship. The effect of the
estoppel is then to prevent the promisor from going back on his promise where the
promise has acted upon it to his detriment BUT where there is NO pre-existing
relationship between the parties, then the promise CANNOT invoke estoppel,
because such an estoppel would create a completely new action. To permit an
estoppel to create a new cause of action would undermine the doctrine of
consideration

* consideration applies to the discharge or variation of contract as well as to its

formation~ after the decision of the Court of Appeal in Williams and Roffey Bros, it is
arguable that consideration should no longer be applied to modification of a
contract.
* where the discharge or variation is capable of benefitting BOTH parties then the
discharge or variation is supported by consideration and it is enforceable
# where the discharge or variation confer a benefit upon ONLY one party then the
agreement is NOT supported by consideration – NO contractual effect.