Ewart : refers to representation in such instances as “assisted misrepresentation” In such a case the person against whom estoppel is raised is estopped not because of any misrepresentation made by himself, but because he furnished an opportunity for fraud and made the representation of another credible.
5. Maintainability as a limitation Estoppel is by reason of considerations of public policy, not permitted to operate in circumstances where its application would produce a result which is offensive to the law, be it common law or statute law. OPERATES ON A ONE-ON-ONE BASIS: • Estoppel operates as a corrective measure based on fairness and equity to affirm the Representee’s reliance on the negligent representation of the Representor, when he acted on the representation to his detriment. This implies a very important limitation to the application of estoppel. • Fairness: operates between the two parties concerned and not against the world at large. • For this reason a reliance on estoppel will only be successful when the Representee can prove that he was personally misled by the representation of the Representor.
REPRESENTATION MUST BE MAINTAINABLE • Successful reliance on estoppel presuppose that the represented state of affairs must be maintainable if the plea of estoppel is upheld. • The purpose of the successful reliance on estoppel is to preclude the representor from resiling from his representation • That is to ensure that he maintains the represented state of affairs UNMAINTAINABLE REPRESENTATIONS • A representation will not be maintainable if its result will conflict with public interest including the overall element of equity. • This is to safeguard against affording the successful representee a benefit that outweighs the conduct of the representor
In the following circumstances the apparent conflict with public interest is so clear that a successful reliance on estoppel can be ruled out from the outset – 1) Illegal or invalid contracts; 2) Ultra vires acts (A statutory or corporate body), which has only such powers and duties as are entrusted to or imposed on it by law or its constitution cannot therefore be bound by estoppel to do something, which is beyond its powers or to refrain from doing something it is bound to do; 3) Matters of status and legal capacity: Estoppel cannot remedy a fundamental error as to status or legal capacity. A court will not entertain a plea of estoppel if its effect would be to confer on a natural or juristic person a status, legal capacity or jurisdiction which he or it does not in law possess.
(Continued) 4) The distinction between invalid and fictitious hire-purchase agreements. 5) Not in competition with the norms of unjustified enrichment 6) Estoppel impermissible against the State in criminal proceedings 7) Estoppel is not a valid defence against the Receiver of Revenue 8) No special application in the law of succession 9) Estoppel is not a defence against the consequences of bigamy.
- Fall '18
- Common Law, representor