The Unconscionable Insistence on Strict Legal Rights to Property
Here again the conduct in question involved instances of falsification of repreÂsentations, or non-disclosure of facts. But unlike the jurisdiction discussed above, it had quite precise foci.
Progressively from at least the early eighteenth century, equity invoked two related doctrines to proscribe what was regarded as the fraudulent—the ‘unconscionable'—assertion by a landowner of his rights over, or interest in, property.The first doctrine had several manifestations each sharing the common characÂteristics of a mistake as to title acted on by one party, and knowing acquiescence (or standing by) by the party who actually had the title. In one manifestation it was considered an act of fraud for an owner of land (knowing himself to be such), first, to stand by and acquiesce in—or even encourage—another to make outlays on the land in the mistaken belief that that land was his own, and, then, later to assert his rights to the land.[706] In another manifestation, as was affirmed by Chancellor Kent in the New York case of Wendell v van Rensselaer:
If one man knowingly, though he does it passively, by looking on, suffers another to purÂchase and spend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterward be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.[707]
The second doctrine was where, having been led by the owner of land to believe that the land had been, or would be given to him, that person proceeded with the encouragement or acquiescence of the ‘donor', to outlay money on the land by way of buildings (or otherwise) in reliance on the ‘gift' or promise. In such cirÂcumstances, the owner could not subsequently assert his rights against the relying party.[708] What is notable about this particular doctrine is that judges in the midÂnineteenth century readily analogised the cases with the enforcement of ‘contracts' notwithstanding that their genesis lay either in an imperfect gift or a voluntary promise.[709]
The relief granted by equity for both doctrines was, ordinarily, to extinguish,[710] qualify,[711] or suspend the landowner's right or else, more rarely,[712] to allow the landÂowner his rights, but to require him to compensate the relying party.[713] The two doctrines, which were later to become known collectively as ‘proprietary estoppel', escaped the nineteenth century unscathed. The doctrine concerned with ‘concealÂment of title' should, in any event, have been of no interest to the maintenance of coherence in contract law.
Its essential concern was with one's knowledge of another's mistake about one's land.[714] While the forms of non-disclosure which attracted equity's interest might well be characterised as fraudulent, or dishonÂest, there was little to suggest in common law decisions that such fraud would be actionable even where dishonest. Deceit characteristically faltered when conÂfronted with an allegation of non-disclosure.[715] [716]The other doctrine—that which could lead to imperfect gifts and voluntary promises being actionable—if vulnerable given the fate of the ‘making good' doctrine, enjoyed a surprising future. The leading case—Ramsden v Dysons3— ‘appears to have been overlooked in Lincoln's Inn'[717] from birth. It was endorsed in a number of Privy Council appeals from New Zealand, India and Canada in which, over time, both these forms of ‘estoppel' were reinterpreted as being founded ‘on contract express or implied'. [718] Ramsden was resurrected in England again in the 1960s[719] in a now more receptive judicial environment though there was initially, at least, indiscriminate mingling of the two forms of estoppel.[720]
V.