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A Metric Measurement of the Chancellor's Foot

Published online by Cambridge University Press:  16 January 2009

Susan J. Burridge
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Extract

Care and concern for the elderly have long been regarded by social anthropologists as hallmarks of a civilised community. Unfortunately the care of the elderly frequently presents problems of both a social and legal nature. Some of the difficulties which confront legal practitioners arise from factual situations similar to the following: an aged, widowed father, whose health is deteriorating, asks his adult child to move into his house and look after him for the rest of his days. In return, the father promises orally to leave the house by will to the child or to the child and his or her spouse. The type of problem which can then occur is seen when it is found on the father's death either that he has died intestate, and the estate of which the house forms part has to be divided equally between the child and his or her brothers and sisters, or that he has forgotten to alter his last will. Consequently a will executed perhaps many years earlier provides that the house should be left to some other relative—or even to the legendary cats' home. The child, having assiduously cared for the elderly father, may wish to claim the house and may seek the practitioner's advice.

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Articles
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The Cambridge Law Journal , Volume 41 , Issue 2 , November 1982 , pp. 290 - 320
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Copyright © Cambridge Law Journal and Contributors 1982

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References

1 See further, Caring for the Elderly and Handicapped: Community care policies and women's lives (March 1982, Equal Opportunities Commission), especially Chaps. 3 and 4, and Who Cares for the Carers: Opportunities for those caring for the elderly and handicapped (March 1982, Equal Opportunities Commission), especially Chaps. 3, 4 and 7.

2 Judicial decisions involving relations moving to live near each other or together in the same house, when the elderly relative no longer wished or was unable to live alone, are innumerable. See e.g., National Provincial Bank Ltd. v. Moore (1967) 111 S.J. 357;Google ScholarHussey v. Palmer [1972] 1 W.L.R. 1286;Google ScholarDodsworth v. Dodsworth (1973) 228 E.G. 1115;Google ScholarGriffiths v. Williams (1977) 248 E.G. 947;Google ScholarRe Gonin [1979] Ch. 16;Google ScholarWilliams v. Staite [1979] Ch. 291;Google ScholarRe Sharpe (a bankrupt), ex pane the trustee in bankruptcy [1980] 1 W.L.R. 219.Google Scholar

3 Cf. Re Gonin [1979] Ch. 16 where Miss Gonin sought to establish that her parents had agreed to give her the relevant property before they died.

4 Cf. National Provincial Bank Ltd. v. Moore (1967) 111 S.J. 357,Google Scholar where a daughter moved into her father's house at his request to look after her parents, who were old and infirm. The father had promised orally to make a will leaving her the bungalow, but it was found on his death that he had left the bulk of his estate to charity.

8 This was what the plaintiff wished to do in Dodsworth v. Dodsworth (1973) 228 E.G. 1115, and the reason why she was seeking possession.Google ScholarCf. Hussey v. Palmer [1972] 1 W.L.R. 1286,Google Scholar where the plaintiff was merely seeking recovery of her money spent in building an additional bedroom on to her son-in-law's house.

6 See, e.g., Townsend, P., The Family Life of Old People (Penguin 1975), p. 66Google Scholar and Caring for the Elderly and Handicapped: Community care policies and women's lives (Equal Opportunities Commission, March 1982), p. 2.Google Scholar

7 See, e.g., Maddison v. Alder son (1883) 8 App.Cas. 467;Google ScholarWakeham v. Mackenzie [1968] 1 W.L.R. 1175;Google ScholarSchaejer v. Schuhmann [1972] A.C. 572;Google Scholar cf. also Re Gonin [1979] Ch. 16, where the alleged contract was supposed to effect a transfer inter vivos of the property.

8 [1960] 1 W.L.R. 286.

9 [1969] 1 W.L.R. 328. See also Balfour v. Balfour [1919] 2 K.B. 571;Google ScholarHardtoick v. Johnson [1978] 1 W.L.R. 683,Google Scholar where Lord Denning at p. 688 considered that there was merely a “family arrangement,” but Roskill and Browne L.JJ. held that there was a contractual relationship; Heslop v. Burns [1974] 1 W.L.R. 1241;Google ScholarHorrocks v. Forray [1976] 1 W.L.R. 230;Google ScholarMerritt v. Merritt [1970] 1 W.L.R. 1211.Google Scholar

10 See further Pettitt v. Pettitt [1970] A.C. 777, 822,Google ScholarperDiplock, Lord, and Hardwick v. Johnson [1978] 1 W.L.R. 683, 688,Google Scholar per Lord Denning. For a further example of a family arrangement having such legal consequences, see also Dodsworth v. Dodsworth (1973) 228 E.G. 1115.Google ScholarCf. Spellman v. Spellman [1961] 1 W.L.R. 921,Google Scholar discussed by ProfDiamond, A. L. (1961) 24 M.L.R. 789,Google Scholar where the same principles were applied in the field of personal property.

11 Law of Property Act 1925, s. 40 (2).

12 [1976] A.C. 536, 541–542. See further the judgment of Goff, L.J. in Daulia Ltd. v. Four Millbank Nominees Ltd. [1978] Ch. 231,Google Scholar which has subsequently favoured Lord Reid's approach, and the judgment at first instance of Kilner, Brown J. in Cohen v. Nessdale Ltd. [1981] 3 All E.R. 118, 126 [1982] 2 All E.R. 97 (C.A.).Google Scholar

13 [1976] A.C. 536.

14 Ibid.

15 [1979] Ch. 16, 31. See further [1979] Conv. 402 (M. P. Thompson).

16 [1968] 1 W.L.R. 1175.

17 “[1976] A.C. 536.

18 Ibid., at p. 542.

19 Ibid., at p. 554.

20 Ibid., at p. 563.

21 Ibid., at p. 547.

22 Ibid., at pp. 568–570.

23 Ibid.

24 See, e.g., the comments of A. J. Oakley [1973] C.L.P. 17; Waters, D. W. M., The Constructive Trust (1964);Google Scholar A. J. Oakley, Constructive Trusts; Goff, and Jones, , The Law of Restitution, 2nd ed. (1978);Google ScholarSealy, , “Fiduciary Relationships ” [1962] C.L.J. 69;Google Scholar“Some Principles of Fiduciary Obligation” [1963] C.L.J. 119;Google Scholar and Campbell, R. L. (1978) 56 Can. Bar R. 346.Google Scholar

25 See, e.g., Oakley, A. J. [1973] C.L.P. 17 especially at pp. 19 and 26–34.Google Scholar

26 Hussey v. Palmer [1972] 1 W.L.R. 1286, 1290.Google Scholar

27 Cf. Lord Denning's judgment in Binions v. Evans [1972] Ch. 359. In my opinion, contractual licensees have only “rights “until a constructive trust is imposed. See further D. H. N. Food Distributors Ltd. v. Tower Hamlets London Borough Council [1976] 1 W.L.R. 852, 859;Google Scholar and Re Sharpe [1980] 1 W.L.R. 219, 224–225.Google Scholar See also DrEverton, A. R. [1982] Conv. 118, 125–132 and Annand [1982] Conv. 67,Google Scholar discussing Midland Bank Ltd. v. Farmpride Hatcheries Ltd. (1980) 260 E.G. 493.Google Scholar

28 See, e.g., Re Sharpe (a bankrupt), ex pane the trustee in bankruptcy [1980] 1 W.L.R. 219, 226.Google Scholar

29 See, e.g., Binions v. Evans [1972] Ch. 359.Google Scholar

30 See, e.g., Bannister v. Bannister [1948] 2 All E.R. 133;Google ScholarBinions v. Evans [1972] Ch. 359;Google ScholarCooke v. Head [1972] 1 W.L.R. 518;Google ScholarEves v. Eves [1975] 1 W.L.R. 1338.Google ScholarCf. also Lord Diplock's oft-cited dicta in Gissing v. Gissing [1971] A.C. 886, 905–906.Google Scholar

31 For some of the evidential problems in bringing claims against a deceased person's estate, see Re Cummins, decd. [1972] Ch. 62.Google Scholar

32 Cf. Binions v. Evans [1972] Ch. 359;Google Scholar and Re Sharpe [1980] 1 W.L.R. 219.Google Scholar

33 [1975] 1 W.L.R. 1338, and Re Densham [1975] 1 W.L.R. 1519.Google Scholar

34 [1975] 1 W.L.R. 1338, 1345.

35 [1975] 1 W.L.R. 1338, and Re Densham [1975] 1 W.L.R. 1519.Google Scholar

36 [1968] 1 W.L.R. 1175, 1181–1182. In Eves v. Eves [1975] 1 W.L.R. 1338 the Court of Appeal also considered that there was an element of trickery on the part of Stuart Eves.Google Scholar

37 See, e.g. Bannister v. Bannister [1948] 2 All E.R. 133;Google Scholarcf. Binions v. Evans [1972] Ch. 359;Google Scholar and Chandler v. Kerley [1978] 1 W.L.R. 693.Google Scholar

38 See, e.g., Hornby (1977) 93 L.Q.R. 561; [1978] Conv. 250.

39 (1841) 4 Beav. 115.

40 (1973) 228 E.G. 1115.

41 [1952] 1 K.B. 290, 295. Although the House of Lords in National Provincial Bank Ltd. v. Ainsworth [1965] A.C. 1175, 1239–1240, 1252 cast doubt on the authority of this decision, the House of Lords were concerned with the views expressed about licences in Errington v. Errington and Woods (supra) rather than the contractual issues of offer and acceptance raised in that case.

42 [1956] 1 W.L.R. 496.

43 [1978] Ch. 231. See further Harpum and Lloyd-Jones [1979] C.L.J. 31.

44 [I960] 1 W.L.R. 286.

45 [1968] 1 W.L.R. 1175.

46 Ibid., at p. 1177.

47 Cf. Macphail v. Torrance (1909) 25 T.L.R. 810.Google Scholar

48 Cf. Ward v. Byham [1956] 1 W.L.R. 496;Google Scholarcf. White v. Bluett (1853) 23 L.J.Ex. 36.Google Scholar

49 [1968] 1 W.L.R. 1175, 1177–1178.

50 Ibid.

51 Contrast Price v. Strange [1978] Ch. 337.Google Scholar

52 See pp. 292–294, supra.

53 [1968] 1 W.L.R. 1175.

54 [1978] Ch. 231.

55 Ibid.

56 See [1979] C.L.J. 31 (Harpum and Lloyd-Jones).

57 Compare the different factual situation in Angell v. Duke (1875) L.R. 10 Q.B. 174Google Scholar. See further Johnston v. Boyes [1899] 2 Ch. 73.Google Scholar For an interesting discussion, see Harpum and Lloyd-Jones [1979] C.L.J. 31, 32–33.Google Scholar

58 [1978] Ch. 231.

59 See further Schaefer v. Schuhmann [1972] A.C. 572, 586, per Lord Cross.Google Scholar

60 Ss. 2 (4) and 4 (6) of the Land Charges Act 1972.

61 [1981] A.C. 487. See also Bridges v. Mees [1957] Ch. 475.Google Scholar

62 See further, e.g., Re Sharpe [1980] 1 W.L.R. 219, 225.Google Scholar

63 [1975] 1 W.L.R. 1338.

64 Ibid., at p. 1345E.

65 [1981] 2 W.L.R. 576, 593. See also Habib Bank Ltd. v. Habib Bank A.G. Zurich [1981] 1 W.L.R. 1265, 1285,Google Scholar where Oliver L.J. repeated this statement. Admittedly the various authorities differ and disagree as to the classification of types of estoppel. Scarman L.J. has even cast doubt on the utility of the distinction between proprietary and promissory estoppel in Crabb v. A run District Council [1976] Ch. 179, 193. For similar views expressed by the Court of Appeal disapproving of the traditional categorisation, see Amalgamated Investment and Property Co. Ltd. (in liquidation) V. Texas Commerce International Bank Ltd. [1981] 3 W.L.R. 565, 575, 584.Google Scholar Contrast the affirmation of the orthodox classification in Spencer Bower and Turner, Estoppel By Representation, 3rd ed. (1977), para. 308. For a similar adherence to the former classification of types of estoppel, see (1981) 97 L.Q.R. 513.

66 [1976] Ch. 179, 192–193. These questions were subsequently applied in Jones v. Jones [1977] 1 W.L.R. 438, 443;Google Scholar and Griffiths v. Williams (1977) 248 E.G. 947, 949.Google Scholar

67 (1880) 15 Ch. D. 96, 105–106.

68 See, e.g., Taylors Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. [1981] 2 W.L.R. 576, 589.Google Scholar

69 [1981] 2 W.L.R. 576, 593.

70 [1981] 1 W.L.R. 1265, 1285.

71 [1981] 3 W.L.R. 565, 575.

72 Verbal assurances were given to Miss Cooke in Greasley v. Cooke [1980] 1 W.L.R. 1306 and considered by the Court of Appeal to be acts of inducement.

73 (1866) L.R. 1 H.L. 129, 170.

74 (1883) 8 App.Cas. 467; cf. Ruth Annand [1981] Conv. 154 and Woodman (1981) 44 M.L.R. 461.

75 (1854) 5 H.L.Cas. 185. For a modern consideration of an alleged estoppel based on representations as to future intention, see Argy Trading Development Co. Ltd. v. Lapid Developments Ltd. [1977] 1 W.L.R. 444.Google Scholar

76 (1883) 8 App.Cas. 467. For a different analysis of this case, see Annand [1981] Conv. 154.

77 Ibid. See further Annand [1981] Conv. 154 and Woodman (1981) 44 M.L.R. 461.

78 See generally Bower, Spencer and Turner, , Estoppel By Representation, 3rd ed. (1977), paras. 289–308.Google Scholar

79 See further Bower, Spencer and Turner, , Estoppel by Representation, 3rd ed. (1977), paras. 3, 4, 20; Chap. 2; and para. 308.Google Scholar

80 It appears from the Court of Appeal judgments in Savva v. Costa and Harymode Investments Ltd. (1980) 131 N.L.J. 1114, [1980] C.A.T. 723, that proprietary estoppel may be found to operate without there being any representation at all. However, in contrast to this decision, Oliver, J. stated in Taylors Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. [1981] 2 W.L.R. 576, 591 that proprietary estoppel is a form of estoppel by representation in its widest sense.Google Scholar

81 See further Spencer Bower and Turner, Estoppel By Representation, 3rd ed, (1977) paras. 4, 47 and Chap. 14. For an illuminating comparison of some of the differing constituent elements of estoppel by representation, promissory estoppel and proprietary estoppel, see Lord Diplock's speech in Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] A.C. 850.Google Scholar

82 See Fry J.'s second “probandum“ in Willmott v. Barber (1880) 15 Ch.D. 96.Google Scholar

83 [1981] 2 W.L.R. 554, 571 (affirmed [1981] 3 W.L.R. 565, C.A.).

84 [1979] Q.B. 467, 482–483.

85 [1980] 1 W.L.R. 1306, 1311B.

86 [1980] 1 W.L.R. 1306, 1311H.

87 [1980] 1 W.L.R. 1306.

88 [1981] 2 W.L.R. 576. See also Western Fish Products Ltd. v. Penwith District Council [1981] 2 All E.R. 204, 217.Google Scholar

89 (1880) 15 Ch.D. 96.

90 (1802) 7 Ves.Jun. 231,235–236.

91 [1981] 1 W.L.R. 1265, 1287.

92 (1880) 15 Ch.D. 96.

93 (1802) 7 Ves.Jun. 231.

94 [1980] 1 W.L.R. 1306.

95 On the question of detriment, see further Woodman (1981) 44 M.L.R. 461 and Annand [1981] Conv. 154. Compare a recent discussion of the question whether it is necessary for the representee to show that he has acted to his detriment in cases of promissory estoppel in SociétÉ Italo-Belge pour le Commerce et L'Industrie S.A. v. Palm and Vegetable Oils (Malaysia) Sdn Bhd [1982] 1 AH E.R. 19, 26–27.

96 [1980] 1 W.L.R. 1306, 1311.

97 [1980] 1 W.L.R. 1306, 1314A.

98 See further Woodman (1981) 44 M.L.R. 461, 462–463.

99 See further Jones v. Jones [1977] 1 W.L.R. 438, where the defendant had left his job.Google Scholar

1 [1979] Ch. 16.

2 See further Woodman (1981) 44 M.L.R. 461, 463–464.

3 (1880) 15 Ch.D. 96, 105–106.

4 [1980] 1 W.L.R. 1306, 1311.

5 [1976] Ch. 179.

6 (1977) 248 E.G. 947, 949.

7 [1979] Ch. 291.

8 [1979] Ch. 291, 299, per Goff L.J., 300–301, per Cumming-Bruce LJ.

9 Cf. Brynowen Estates Ltd. V. Bourne (1981) 131 N.L.J. 1212.Google Scholar

10 [1979] Ch. 291.

11 See further Brynowen Estates Ltd. v. Bourne (1981) 131 N.L.J. 1212.Google Scholar

12 (1973)228 E.G. 1115.

13 [1972] 1 W.L.R. 1286.

14 [1976] Ch. 179, 193.

15 (1977) 248 E.G. 947, 949. See further Pascoe v. Turner [1979] 1 W.L.R. 431 and B. Sufrin (1979) 42 M.L.R. 574.Google Scholar

16 (1977) 93 L.Q.R. 561.

17 [1962] A.C. 496, 507–508, 511–512.

18 [1978] Conv. 250.

19 See further Re Ogle's Settled Estates [1927] 1 Ch. 229, 233, perRomer, J. C.Bannister v. Bannister [1948] 2 All E.R. 133;Google ScholarBinions v. Evans [1972] Ch. 359.Google Scholar See also the comments in [1978] Conv. 250, 251 (n. 12) and Dr. A. R. Everton [1982] Conv. 118, 130.

20 (1977) 248 E.G. 947, 950.

21 [1979] Ch. 291, 299, per Goff L.J.; 300–301, per Cumming-Bruce L.J.

22 [1976] Ch. 179.

23 (1973)228 E.G. 1115.

24 [1979] Ch. 291, 298–301.

25 See further the problems of construing the “instrument(s)” in Morss v. Morss [1972] Fam. 264 and see Hornby (1977) 93 L.Q.R. 561. Compare also the consideration by the Court of Appeal of all the circumstances when determining whether there was a licence or a settlement in Chandler v. Kerley [1978] 1 W.L.R. 693.

26 Ss. 4 and 5 of the Settled Land Act 1925.

27 See ss. 73, 74 and 75 of the Settled Land Act 1925.

28 Compare the situation when the sale is a disposition not authorised by the Settled Land Act 1925. Such was the sale by the trustees of the Tredegar Estate in Binions v. Evans [1972] Ch. 359 discussed by Jill Martin in (1972) 36 Conv. (N.S.) 266, 268.

29 Estoppel equities will bind successors-in-title including purchasers for value with notice. See further Inwards v. Baker [1965] 2 Q.B. 29Google Scholar and E. R. Ives Investment Ltd. v. High [1967] 2 Q.B. 379.Google Scholar See further [1981] Conv. 347 (P. N. Todd).

30 [1981] A.C. 487. See further National Provincial Bank Ltd. v. Ainsworth [1965] A.C. 1175, 1223, 1260–1261;Google Scholar and Blacklocks v. J. B. Developments (Godalming) Ltd. [1981] 3 W.L.R. 554.Google Scholar

31 For the position of the purchaser after the court order creating the settlement in this situation, see, e.g., ss. 72 and 110 of the Settled Land Act 1925.

32 (1973) 228 E.G. 1115.

33 (1973) 228 E.G. 1115, 1117.

34 Ibid., at pp. 1117. Cf. Bannister v. Bannister [1948] 2 All E.R. 133.Google Scholar See also Lord Denning's minority judgment in Binions v. Evans [1972] Ch. 359 and the obiter dicta of Goff L.J. in Griffiths v. Williams (1977) 248 e.g. 947. Cases such as Inwards v. Baker [1965] 2 Q.B. 29,Google ScholarWilliams v. Staite [1979] 1 Ch. 291 and Greasley v. Cooke [1980] 1 W.L.R. 1306 were decisions involving (perhaps significantly) licences of indefinite duration resulting from estoppel equities rather than contractual licences.Google Scholar

35 See further Binions v. Evans [1972] Ch. 359.Google Scholar See also the comments of the Court of Appeal in Griffiths v. Williams (1977) 248 E.G. 947, 949–950.Google Scholar

35 (1977) 248 E.G. 947.

37 Such a lease would automatically become a lease for 90 years in accordance with s. 149 (6) of the Law of Property Act 1925, although the court did not specifically refer to this point.

38 See pp. 309–311, supra.

39 For the terms of the lease, see Griffiths v. Williams (1977) 248 E.G. 947, 950.Google Scholar

40 For leases determinable on death created since the coming into operation of the Housing Act 1980, see Sched. 21, para. 93 to the Housing Act 1980.

41 See [1978] Conv. 250,252.

42 [1975] I.C.R. 340.

43 (1973) 228 E.G. 1115.

44 See, e.g. Tanner v. Tanner [1975] 1 W.L.R. 1346,Google Scholar where the licence was contractual. However, it is submitted on the basis of the majority of the judgments in Tanner v. Tanner (supra) that whether the licence is contractual or an estoppel licence should make no difference. Although Browne L.J. awarded compensation on the basis of the plaintiff's breach of contract, Lord Denning granted it for loss of the licence and Brightman J. awarded damages in lieu of an injunction. The latter two reasons would apply equally to an estoppel licence.

45 [1972] Ch. 359. See further (1972) 88 L.Q.R. 336 (P.V.B.); (1972) 36 Conv. (N.S.) 266 (Jill Martin); [1973] C.L.J. 123 (R. J. Smith); (1976) 40 (Conv.(N.s.) 416 (Dr. A. R. Everton); (1977) 93 L.Q.R. 561 (Prof. J. A. Hornby). Compare Lord Scarman's comments in Chandler v. Kerley [1978] 1 W.L.R. 693, 698. See also Briggs [1981] Conv. 212; Dr. A. R. Everton [1982] Conv. 118, 126–132.

46 See further Briggs [1981] Conv. 212. For some of the recent complications caused by contractual licences, see Midland Bank Ltd. v. Farmpride Hatcheries Ltd. (1980) 260 E.G. 493,Google Scholar discussed by Wilkinson (1982) 132 N.L.J. 68 and Annand [1982] Conv. 67.

47 It is unusual for the original owner of the legal estate to be divested of the fee simple absolute in satisfaction of an estoppel equity. However, see Dillwyn v. Llewellyn (1862) 4 De G.F. & J. 517 and Pascoe v. Turner [1979] 1 W.L.R. 431,Google Scholar where the claimant in each case was awarded the fee simple in satisfaction of the estoppel equity.

48 Cf. the position of the purchasers in, e.g., Binions v. Evans [1972] Ch. 359 and Re Sharpe [1980] 1 W.L.R. 219, 226.Google Scholar See also P. N. Todd [1981] Conv. 347 and Dr. A. R. Everton [1982] Conv. 118, 126–132.Google Scholar

49 [1981] A.C. 487. See also Re Sharpe [1980] 1 W.L.R. 219 and [1980] Conv. 207, 214–215 (Jill Martin).Google Scholar

50 See, e.g., Hodgson v. Marks [1971] Ch. 892;Google ScholarWilliams and Glyn's Bank Ltd. v. Boland [1981] A.C. 487;Google ScholarBlacklocks v. J.B. Developments (Godalming) Ltd. [1981] 3 W.L.R. 554.Google Scholar See further Midland Bank Ltd. v. Farmpride Hatcheries Ltd. (1980) 260 E.G. 493.Google Scholar This case deals with the position of contractual licences rather than estoppel licences, but see the very useful discussion by H. W. Wilkinson (1982) 132 N.L.J. 68, especially at p. 69.

51 [1976] A.C. 536; cf. Crane (1974) 38 Conv.(N.s.) 354; H. W. R. Wade (1974) 90 L.Q.R. 433; C. T. Emery [1974] C.L.J. 205.

52 See pages 305–306, supra.

53 [1979] Ch. 291.

54 Ibid., at p. 300.

55 Ibid., at p. 298.

56 [1978] 1 W.L.R. 683, 689.

57 [1979] Ch. 291, 300.

58 [1977] W.L.R. 438.

59 [1979] Ch. 291, 295F and 296C. Contrast Pascoe v. Turner [1979] 1 W.L.R. 431.

60 See, e.g. Re Coventry Deceased [1980] Ch. 461.Google Scholar See also Allcorn v. Harvey, 25 March 1980 (unreported).Google Scholar

81 See, e.g., Deglman v. Guaranty Trust Co. of Canada and Constantineau [1954] 3 D.L.R. 785;Google Scholar and Hink v. Lhenen (1974) 52 D.L.R. (3d) 301.Google Scholar See further Gareth Miller (1978) 128 New L.J. 449, 452.Google Scholar

62 See, e.g., Fry on Specific Performance, 6th ed. (1921);Google ScholarWaters, , The Constructive Trust (1964) and Spencer Bower and Turner, Estoppel by Representation, 3rd ed. (1977).Google Scholar

63 [1976] A.C. 536.

64 See, e.g., the amorphous phraseology of Lord Denning in Hussey v. Palmer [1972] 1 W.L.R. 1286, 1290. For more recent comments on the use of the constructive trust, see Jill Martin [1980] Conv. 207, 212–213 and Dr. A. R. Everton [1982] Conv. 118, 126–132.Google Scholar

65 [1979] 1 W.L.R. 431. See further F. R. Crane [1979] Conv. 379 and Sufrin (1979) 42 M.L.R. 574.

86 It is interesting to observe the way in which the facts of many of the leading authorities in this area of the law can support two-pronged arguments, with each head of argument involving a different doctrine. For instance, in the last century, in Ramsden v. Dyson (1886) L.R. 1 H.L. 129 there were arguments based on part performance (which failed) as well as those concerning proprietary estoppel (which also failed). Likewise in Maddison v. Alderson (1883) 8 App.Cas. 467 claims were made invoking the doctrine of estoppel as well as those rc'yin" on the doctrine of part performance (although both pleas failed). More recently, in the twentieth century, cases such as Hussey v. Palmer [1972] 1 W.L.R. 1286 and Re Sharpe [1980] 1 Ch. 219 have displayed interlocking elements of proprietary estoppel and the concept of the constructive trust, albeit that Lord Denning's conclusions with regard to the existence of a case of proprietary estoppel in Hussey v. Palmer [1972] 1 W.L.R. 1286 have been much criticised. In addition, it is easy to see how the facts in cases such as Eves v. Eves [1975] 1 W.L.R. 1338 might have given rise to a claim based on proprietary estoppel (especially when considered in the light of Greasley v. Cooke [1980] 1 W.L.R. 1306) as well as to that alleging the existence of a constructive trust.

67 See further Annand [1981] Conv. 154 and Woodman (1981) 44 M.L.R. 461.

68 It is not without significance that the doctrine of part performance and the law concerning constructive trusts are expressly referred to in s. 40 (2) and s. 53 (2) of the Law of Property Act 1925 respectively.

69 See, e.g., the statements of Lord Denning in Hussey v. Palmer [1972] 1 W.L.R. 1286, 1290. There has also been a noticeable trend in recent estoppel cases to disregard “archaic and arcane“ distinctions and to use more generalised expressions such as “unconscionable behaviour.” See, e.g., Oliver J.'s statements in Taylors Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. [1981] 2 W.L.R. 576, 588–589, repeated by him in the Court of Appeal in Habib Bank Ltd. v. Habib Bank A.G. Zurich [1981] 1 W.L.R. 1265, 1285. However, it is submitted that such vague terminology, while bestowing upon judges greater freedom of action and wider limits within which to exercise their discretion, does not help to delineate the contours of the concepts.

70 Maddison v. Alderson (1883) 8 App.Cas. 467 would seem to me to be such a case, if in fact a contract had been found to exist.Google Scholar

71 See further the judgment of the late Sir Arthur Bagnall in Cowcher v. Cowcher [1972] 1 All E.R. 943, 948.