Doctrine Of Estoppel Research Articles

Доктрина «эстоппель» в контексте принципа добросовестности в судебной практике РФ

This article discusses the application of the principle of “estoppel” in the judicial practice of the Russian Federation. The author reveals the concept of the estoppel doctrine in the context of the principle of good faith. Based on the analysis of court decisions, a conclusion is made about a change in the traditional understanding of the estoppel doctrine in the realities of the modern judicial system.

ПРИНЦИП "ЕСТОПЕЛЬ" ЧИ ДОКТРИНА VENIRE CONTRA FACTUM PROPRIUM: СПІВВІДНОШЕННЯ ТА ПРІОРИТЕТНІСТЬ

This scholarly piece aims to analyze the cases of procedure and material estoppel doctrine application in Ukrainian legal practice, as well as to theoretically overthink the grounds (including legal) of this English common law of equity institute reception into Ukrainian law without proper statutory provisions. Methods. Theoretical provisions and conclusions made as the result of this research, as well as the validity of its results are based on the following methods. Dialectical method, being of the universal nature and covering the highest abstraction levels in methodology, provides possibility to achieve the main goal – creation of major streams and the relevant software (regulations) in creating the research algorithm. This research has applied the following principles: objectivity, generality, systemic character, unity, deduction and induction, as well as historism. Comparative and formal juridical methods provided possibility to analyze estoppel doctrine in English law, as well as its analogue in civil law states. General scientific methods of abstraction and modelling were also applied. Considering the object of the research, historic and legal, as well as systemic and structural and formal juridical methods were applied. Results. The paper covers the history of estoppel rule as the product of English law of equity, its characteristics, types and grounds for application. The cases of Ukrainian courts directly applying this doctrine, led to the conclusion on the absence of statutory regulation of this norm application, as well as incorrect approach to directly apply its English analogue. In order to counter the abuse of rights, the paper recommends to return to historically adopted doctrine venire contra factum proprium, considering the Western civil law tradition to view interaction as an agreement, and applying estoppel for cases which may not be viewed as an agreement. The paper stipulates that estoppel doctrine application requires its inclusion in relevant legislation. Conclusions. The implementation of English law institutes is an important step in enriching the instrument set of Ukrainian practice regarding the abuse of law. However, the implementation should be legislatively normed, be doctrinally grounded and should not evade historically set constructions capable to perform similar functions.

Authority by representation – a rule lacking a theory: A reappraisal of Makate v Vodacom (Pty) Ltd 2016 (4) 121 (CC)

In Makate v Vodacom (Pty) Ltd 2016 (4) 121 SA (CC) the Constitutional Court had to consider the difficult question whether an agreement to negotiate compensation at a later date for an employee who had invented something for his employer was enforceable, where in the absence of later agreement the issue would be referred to the Chief Executive Officer of the employer for final determination. Although the court answered this in the affirmative, the more pressing issue for present purposes was whether the representative of the employer who had negotiated the agreement with the employee had the necessary actual or apparent authority to conclude the agreement. In dealing with the matter of authority, the apex court took an unconventional approach to ‘ostensible’ or ‘apparent’ authority: Whereas the basis of such authority has traditionally been seen as the doctrine of estoppel, the court held that the expressions ‘apparent authority’ and ‘ostensible authority’ have no bearing on estoppel as such, but rather refer to a form of actual authority arising from a representation of authority by the principal in respect of the agent. This article examines the court’s approach in that regard and concludes that, although the decision attracts criticism from a conceptual viewpoint, there is merit in such an approach if it is adapted and defined purely in terms of the reliance theory.

Rethinking Fairness: The Scope of Assignor Estoppel Doctrine after Minerva

Rethinking Fairness: The Scope of Assignor Estoppel Doctrine after Minerva

Don’t 'Estop' Me Now: Estoppel, Government Contract Law and Sovereign Immunity if Congress Retroactively Repeals Public Service Loan Forgiveness

This Article considers whether federal student loan borrowers can bring successful legal challenges if Congress retroactively repeals the Public Service Loan Forgiveness (“PSLF”) program. It addresses whether borrowers at litigation could rely on analogies to the promissory estoppel doctrine or assert equitable estoppel claims to challenge the repeal. In doing so, the Article explores the intersection of estoppel and government contract law with sovereign immunity theories in a way that has never been done before. This topic has been given very little attention in prior literature, so I aim to present its legal issues in a clear way while paying tribute to its nuance.The Article addresses the hurdles of sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article similarly contends that most if not all equitable estoppel claims would likely fail before a court. The Article then offers an alternative proposal to Congress, which would avoid the issues that would arise at litigation, while solving the problems associated with the program and protecting the most vulnerable members of society negatively impacted by a repeal.

Revocation of Exemption Upheld, Not Barred by Equitable Estoppel Doctrine

Bruce R. Hopkins' Nonprofit CounselVolume 37, Issue 11 p. 6-6 Articles Revocation of Exemption Upheld, Not Barred by Equitable Estoppel Doctrine First published: 12 October 2020 https://doi.org/10.1002/npc.30790Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat No abstract is available for this article. Volume37, Issue11November 2020Pages 6-6 RelatedInformation

Legal Transitions without Legitimate Expectations*

Legal Transitions without Legitimate Expectations*

DOUBLE JEOPARDY UNDER CODE OF CRIMINAL PROCEDURE (Section 403)

The point of discussion of this paper is to have a detailed overview of the doctrine of “Double Jeopardy'' under the “Code of Criminal Procedure 1898”. This paper will begin by discussing what Double Jeopardy is, then it will discuss the legal provisions on Double Jeopardy applicable in Pakistan. It will explain the basis of section 403 CrPC. The critical review of this doctrine will be given in this paper at hand. This paper will briefly discuss the conditions necessary for the applicability of the doctrine of double jeopardy. Furthermore, it will be discussed what the law under CrPC explicitly states and how it is implemented by the judiciary. In addition to that this paper will also discuss exceptions to the doctrine of double jeopardy. It precisely states how the concept of public interest overrides the doctrine of estoppel. Relevant case laws have been cited.

Fake Facts, Copyright Law, and the Factual Estoppel Doctrine

Fake news may be trending right now, but fake news is not the only source of fake facts that we consume. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the telephone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than created, fake facts are created and can often be as original and creative as fiction. This paper is the first to offer a comprehensive analysis of copyright protection of fake facts contained in fake news and other sources. It details the different categories of fake facts we encounter today and courts’ inconsistent protection of fake facts under copyright law. Even though copyright law may technically protect fake facts as original expression fixed in a tangible medium, this paper argues that the public interest in promoting efficiency, fairness, and production of socially-valuable works justify treating fake facts as unprotectable facts under copyright law. Specifically, courts should apply copyright law’s factual estoppel doctrine to treat fake facts as unprotectable facts in infringement cases where an author previously held out fake facts as facts, with the intent that the public rely on the fake facts as facts, if the public could believe the fake facts to be true.

Спор между США и Канадой о разграничении в море Бофорта (международно-правовой анализ)

Introduction. Maritime boundary disputes and exercising sovereignty in the Arctic are of great current interest in the International Law since there is no uniform understanding of the limits of applicability of the United Nations Convention on the Law of the Sea 1982 to the Arctic Ocean taking into account the international customary law and historic rights of the coastal states. One of such disputes is the US-Canada Beaufort Sea maritime boundary dispute which is of vast importance due to the hydrocarbon exploration of these states in the outlined area as well as due to the conclusion and entry into force of the Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean 2010. Materials and methods. The theoretical background of this research consists of works of distinguished Russian and foreign scholars and specialists in International Law. The analytical framework includes the treaties between Arctic coastal states concerning maritime delimitation (the Convention Concerning the Limits of Their Respective Possessions on the Northwest Coast of America and the Navigation of the Pacific Ocean 1825, Treaty concerning the Cession of the Russian Possessions in North America by his Majesty the Emperor of all the Russia to the United States of America 1867, Agreement between the United States of America and the Union of Soviet Socialist Republics on the maritime boundary 1990), national legislation of the US and Canada, diplomatic notes. The research is based on methods such as formal logic, including analysis, synthesis, analogy and modeling historical research, as well as systematic, historical and comparative methods. Research results . Based on the results of the study, the author notes that there are considerable differences in the US and Canada’s legal stances concerning the disputed area of the Beaufort Sea, including in particular the opposing views of these states on the applicability of the Convention 1825 to their relations (according to Canada, it applies to maritime areas, whereas the US favours its literal construction which limits its scope to land areas). The US and Canada also base their claims on the rules on special circumstances and the doctrine of estoppel which are reflected in their national legislation. The legal analysis of the different approaches to the resolution of the dispute in question allows making the conclusion on the perspective and necessity of its settlement, particularly, in the context of the Russian Arctic claims. Discussion and conclusions . Based on the legal analysis of the international treaties on the Arctic delimitation, US and Canada national legislation and doctrinal views, the author comes to the conclusion that sustaining the status-quo is beneficial for both parties since it does not affect the legal positions of other states in similar disputes, nor does it hinder the international cooperation in the Arctic.

THE CONCEPT OF SYNALLAGMATIC LINK ACCORDING TO THE LAW OF ENGLAND AND RUSSIA

This article deals with the issues relating to the synallagmatic link of obligations from the contract on Russian law, as well as the institutions through which the goals of the synallagma are achieved in English law. The doctrine of the synallagmatic link of obligations from the contract in its entirety, which is usual for continental civilian, is not developed in common law. At the same time, the ideas of this doctrine are realized through other institutions. In particular, the genetic aspect of the synallagma in common law is expressed by the necessity of having a reciprocal grant (consideration). The weakening of the genetic level of synallagma in common law is due to the historically established tortuous archetype of the contract. This weakening manifests itself in numerous implicit conditions, often only legal fictions, and the promissory estoppel doctrine is capable of completely eliminating the requirement of a genetic synallagma. The idea of the functional level of a synallagmatic link in the common law is realized through the theory of interdependence. At the same time, the taxonomy of the conditions differs significantly from the domestic one. Thus, the condition is divided into events for which neither side took on a contingent condition, and conditions that are an event for which one party assumed responsibility (promissory condition). That is, the criterion of differentiation is the acceptance of responsibility, and not the fact, on whose will the events depend. Depending on the condition for which no party has taken responsibility, only the contract as a whole can be put, which allows preserving the functional link of obligations. Attenuation of this level of synallagma is possible through the mechanism of independent promises if the parties directly provide this condition in the contract.

Litigating Intellectual Property Issues in Investor-State Dispute Settlement: A Jurisdictional Conflict

This article attempts to show a jurisdictional conflict, while litigating intellectual property in investor-state dispute settlement (ISDS). At the global level, the World Trade Organization (WTO) dispute settlement body has jurisdiction to deal with any matters related to intellectual property. On the contrary, ISDS exclusively settles a dispute arising from an investment. The recent International Investment Agreements reveals that ‘intellectual property’ is part of the definition of investment, giving way for an investor to challenge intellectual property issues in ISDS. This departure of forum shifting from WTO Dispute Settlement Understanding to ISDS can be seen through the lenses of res judicata and doctrine of estoppel. However, the impact of such jurisdictional conflicts awaits future claimants.

An Estoppel-Based Approach to Enforcing Corporate Environmental Responsibilities

Within the regulatory space that exists at the intersection of UK company law and environmental regulation, the business community has generated its own environmental governance initiatives to address growing anxiety about companies’ externalised risk. Yet, there is currently nothing in law to prevent companies from frequently acting inconsistently with these voluntary unilateral assurances, which has led to widespread concern that environmental values are treated as merely instrumental to the dominant idea of achieving economic benefits for the company. This article examines a specific case for the legal facilitation of binding obligations owed to the environment, which require a company to make good on its previous commitments about environmental responsibility. It seeks to demonstrate that this is possible through the common law doctrine of estoppel, which can be opened up to prevent a company from acting inconsistently with its previous statements or actions about the governance of environmental risk.

Promiseee Right to Bound Public Authorities to Their Promise: The Debate between the Doctrine of Estoppel and Legitimate Expectation

It is common place that public authorities sometimes give assurance to individual or group of citizen such as postponing development project, relocation, provision of benefits etc. As public administrative does not exist only to serves the interest of the representee, the rights and interest of others must be considered as well. Hence the ability of representee to enforce promises made by the authorities denotes administrative consistency and trust for the government. Traditionally, the representor is prevented by the private law doctrine of estoppel from resiling. However, the principle has gradually shifted towards collectivism. This essay revisit the principle behind the traditional doctrine and the current principle of legitimate expectation. In view of gradual acceptance of the latter, this essay discusses the viability of abolishing the traditional doctrine and the possible effect to future claims.

Uncle Jack, Jaycee and the equitable doctrine of estoppel: using Second Life to support the development of advanced oral communication skills in law students

The ability to communicate appropriately, effectively and persuasively to a diverse audience is a mandated learning outcome for all Australian law students. Communication skills include both written and oral skills. This article examines and evaluates a project aimed at reconceptualising and, thereby, expanding the learning and teaching of oral communication skills in law through the digital presentation of a hypothetical problem using Second Life.

Fact, Future and Fiction: Risk and Reasonable Reliance in Estoppel

This paper argues that a common theme underpins the doctrines of estoppel by representation and convention, promissory and proprietary estoppel. In each case, it is the law's concern to respond appropriately to, and not to reward, undue risk-taking on the part of claimants in a non-contractual context. In doctrinal terms, this concern is mediated through the common requirement that the claimant must have acted in reasonable reliance on an assumption induced by the defendant. This paper concludes that the way remains open for the development of a coherent and unified doctrine of reliance-based estoppel moulded around the requirement of reasonable reliance.

Is there an estoppel issue in the Cronulla Sharks and Essendon Bombers doping scandal?

This paper considers the application of the doctrine of estoppel to ‘shield’ from contract-based prosecution those players of the Cronulla Sharks and Essendon Bombers implicated in recent accusations of doping. The arguably different application of estoppel as between the clubs (which are contractually entitled to punish players for doping) on one hand, and the organising bodies of the National Rugby League (NRL) and the Australian football League (AFL), on the other, is also considered.

Making Credit Rating Agencies Accountable: Is Estoppel a Possible Solution?

Credit rating agencies (CRAs) have become the arbiters of financial markets. There is a strong argument to the effect that they have become too powerful, particularly in the context of the ongoing financial crisis where they seem to have power without responsibility. This paper sets out tentative suggestions for reforming the present regulatory framework by making CRAs liable for issuing inaccurate ratings. The analysis starts out by mapping the contours of the legal aspects of the ratings market before going on to address the major questions regarding CRAs' modus operandi. The fact is that credit ratings affect market confidence and influence both investment decisions and expectations. For this reason, CRAs are capable of bringing about potential distortions in the financial sector. There has been much scholarly debate about the need for a civil liability regime for CRAs and whether such a scheme would be feasible. A civil liability regime for CRAs could constitute a system of investor protection over and above classic regulation. In this context, this paper considers whether the doctrine of estoppel might not be a feasible way of making CRAs accountable. Although a conclusive finding cannot be made, it is possible that the implementation of an effective liability regime through estoppel, could be a valid option for holding CRAs responsible.

Hely Hutchinson v. Brayhead Ltd. - The Authority on Actual and Ostensible Authority

The case of Hely Hutchinson v. Brayhead Ltd. till date is taken as authority with regards to actual and ostensible authority in an organisation and liability in terms of employees. In an organisation, is the director an agent? Does he have absolute or actual authority to single-handedly carry out actions with or without consultation from the board of directors or any other such authority? What is the doctrine of estoppel and how is it related to Actual and Ostensible Authority? Are Actual and Ostensible Authority mutually exclusive? What role does the Contract Act play in such situations? These are only a few of the many questions raised in the case. Lord Denning, Lord Pearson and the other Justices have all answered these vital questions in this case, the help of a previous landmark cases like Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd. was taken. This paper consists of enumerable citations of relevant cases which were used in the judgment by the Justices and also are a medium of analyzing viewpoints post Judgment. This case till date is taken as the authority in defining actual authority or ostensible authority in an organisation and it is the sheer quality of the judgment by all the Justices in this case that allows it to remain so especially considering today's context of Company's and their risky elements including the employees. Through this paper, the attempt to answer all these questions has been made and to clearly define what authority in relation to any liability or decision actually is once and for all.

But it Wasn’t My Fault! The Scope of the Zoning Estoppel Doctrine

Zoning Estoppel is a claim in that may be argued by those who, in reliance on an invalid permit issued to them, expended substantial sums of money relying on the permit, later to have their permit revoked for invalidity. This claim is asking the courts to estop the municipality from their power to revoke the permit. Since this is a state-based claim in equity, there is no per se rule that courts use to analyze an estoppel claim other than fairness and equity to the permittee. As such, jurisdictions appear to approach the issue differently, resulting in a doctrine that has a reputation of being opaque, unpredictably applied, and often difficult to attain. This Note argues that while the Zoning Estoppel doctrine is often viewed as unavailable to recipients of illegal permits, courts do in fact invoke this doctrine. Though it seems as if there is no consistency with the way in which the doctrine is invoked, this Note further proposes that courts can and should find estoppel when the facts of the case satisfy four factual categories. Part I of this Note describes the nature and elements of an estoppel claim, the permit process, and the vested rights doctrine. Part II demonstrates the doctrine as applied in the courts, indicating issues courts face when ruling on an estoppel claim. Part III of this Note proposes that this blurred doctrine is not as ambiguous as it appears, and can be understood by analyzing the circumstances of each case. Specifically, it proposes a test consisting of four factual categories that tend to be determinative when courts are confronted with claims for equitable estoppel, and argues that courts should examine the facts of a zoning estoppel claim through these four factual categories. Finally, Part IV discusses the benefits and potential implications of adopting the test. Ultimately, assessing an estoppel claim through these four factors would create more consistency in applying the estoppel doctrine, and would make a successful claim by a developer or landowner more tenable.