Intention to Create Legal Relations and Promissory Estoppel

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Intention to create legal relations and Promissory Estoppel


In order to prevent the courts from being troubled by disputes concerning agreements which aren’t intended to be legally binding the courts have sought to distinguish agreements that should be legally enforceable and those which should not.


  1. DOMESTIC AGREEMENTS- presumption that there is not ITCLR
  • Balfour v Balfour:

Facts: husband and wife, he’s employed in sri lanka, she gets sick and comes back to uk and husband promises to pay 30 maintenance pm. He doesn’t and she sues him for breach of contract

Atkin LJ:the common law doesn’t regulate the form agreement between spouses…. natural love and affection which counts for so little in these cold courts [isn’t valid consideration].

CoA refused the wife’s claim. There are times when its not appropriate for the law to intervene on contractual relationships. This is because the parties themselves didn’t intend for the promise to have contractual consequences. i.e its just an arrangement between families.

  • Maple Leaf Macro v Rouvroy:

the judge found that although R hadn’t subjectively intended to be bound when they signed, the objective intention of the parties was that they would be bound. R’s subjective intentions were irrelevant to the question of whether there had been a binding contract. Parties’ intentions to be legally bound had to be ascertained objectively.

  • Merrit v Merrit:

this is an exception to the rule that there is no intention to create legal relations in domestic situations. CoA held that the nature of the dealings and the fact that the Merrits had separated when they signed their contract, allowed the court to assume that their agreement was more than just a domestic agreement. What you should actually use an objective test to help you determine this.

  • Hamer v Sidway:

forbearance of existing rights was sufficient consideration

  • Jones v Padavatton:

domestic arrangements between parents and children are presumed not to create legal relations

  • John Sadler v George Reynolds:

Contractual intention is normally judged objectively. The facts of the case meant that the agreement between the parties was somewhere between an obviously commercial transaction and a social exchange.


  1. SOCIAL AGREEMENTS- courts reluctant to find contractual intention
  • Coward v Motor Insurers Bureau:

There was no ITCLR in this case. However they did create a series of exceptions; when the parties’ ongoing relationship is always based on actions in return for an award. In this case there was no contract of hire or reward as it was a social and domestic agreement and therefore no ITCLR. The widow was therefore not entitled to compensation.

  • Albert v MIB:

This case is different to Coward as the lifts that were offered were done so in a commercial context, he had given lifts to different people over a period of time. Judge differentiated by saying, the acts in this case always had a reward attached to it, the line between the two cases is very narrow. Therefore there was ITCLR.


  • Parker v Clark:

An exception is where one party has detrimentally relied on another. In this case the young couple detrimentally relied on the old couple’s promise that they would have a place to stay.

  • Simpkins v Pays:

It was clear the only reason the arrangements had been entered into was for the reward. There was a binding contract despite the family connection as the lodger was also a party to the contract. This rebutted the presumption of no ITCLR.


  • Edward v Skyways:

The agreement had been made in a business context which raised a strong presumption that the agreement was legally binding. C could therefore enforce the agreement and claim the money.

  • Esso Petroleum v Commissioners of Customs and Excise:

Facts: Esso ran a promotion whereby any person purchasing four gallons of petrol would get a free coin from their World Cup Coins Collection. The question for the court was whether these coins were ‘produced in quantity for general resale’ if so they would be subject to tax and Esso would be liable to pay £200,000. Esso argued that the coins were simply a free gift and the promotion was not intended to have legal effect and also that there was no resale.

There was ITCLR, the coins were offered in a commercial context which raised a presumption that they did intend to be bound. However the coins weren’t exchanged for a money consideration and therefore weren’t for resale.


Exceptions= when there’s an express agreement between the two parties that there won’t be legal relations between the two parties.

  • Rose and Frank v Crompton Bros:

Subject to contract, there’s no intent to create legal relations unless there’s a clause. In this case it was held that the honourable pledge clause rebutted the presumption which normally exists in commercial agreements that the parties intend to be legally bound by their agreements. The agreement therefore had no legal effect and was not enforceable by the courts. it is generally assumed that a contract has been intended in business. Here there was a specific clause stating that the intention of the parties was not to be legally bound in a contract. In contract law the intentions of the party’s matters and here they were clearly stated. Atkin, in the dissent, agreed that the document did not form a legally binding contract, but held that the orders and responses between the parties in the process of business constituted enforceable contracts of sale.

It is generally assumed that parties in business relationships intend to be bound. If parties expressly state in an agreement that they do not wish to be bound, the courts must respect their actual intentions. FREEDOM of CONTRACT in the UK jurisdiction/ common law in relation to contract law.



A court will not consider a statement if they consider it to not have been seriously meant. Weeks v Tybald.





It’s all about enforceability. Consideration is what was offered in return for the performance, is it cash performance of duty, so there’s an exchange. Promissory estoppel works where there’s no consideration and only where there is no consideration. Equitable doctrine means that it’s available only at the discretion of the court and may be used only as a ‘shield not a sword.’ Its relevant only when contracts are modified, and there is no fresh consideration for the change. e.g Foakes and Beer. You’re estopped from going back on promise, you cant then sue as B relies on the fact that a promise has been made. In the law of contracts, the doctrine that provides that if a party changes his or her position substantially either by acting or forbearing from acting in reliance upon a gratuitous promise, then that party can enforce the promise although the essential elements of a contract are not present. A promisor—one who makes a promise—makes a gratuitous promise that he should reasonably have expected to induce action or forbearance of a definite and substantial character on the part of the promisee. The promisee justifiably relies on the promise. A substantial detriment e.g an economic loss ensues to the promisee from action or forbearance. Injustice can be avoided only by enforcing the promise



  • Jorden v Money:

DECISION: The HOUSE OF LORDS said that there was no estoppel in this situation. The The HOUSE OF LORDS said that estoppel can only work when the statement is about an existing fact, not a promise. As soon as it becomes a promise, it crosses into the territory of contract law.  A representation as to the future must be embodied as a contract or be nothing. This case has been held to be authority for the proposition that estoppel was limited to representations of present fact, and could not be extended to representations of intention.

  • Hughes v Metropolitan Railway:

o   Thomas Hughes owned property leased to the Metropolitan Railway Company at 216 Euston Road. Under the lease, Hughes was entitled to compel the tenant to repair the building within six months of notice. Notice was given on October 22, 1874 from which the tenants had until April 22, 1875 to finish the repairs. On November 28, the tenant railway company sent a letter proposing to purchase of the building from Hughes. Negotiations began and continued until December 30th, at which point nothing was settled. Once the six months had elapsed the landlord sued the tenant for breach of contract and tried to evict the company. The tenant completed the repairs in June. Hughes was successful at trial but was overturned on appeal.

o   If a promise is implied in negotiations and one party relies on that promise then it is inequitable to allow the other party to act as though the promise does not exist. The defendants relied on this promise, and therefore it would be unfair to make them liable in this case. The implied promise is enough to allow estoppel to apply.

The Important case: Central London Property v High Trees:

  • Denning established the doctrine of promissory estoppel. Promissory estoppel prevented CLP going back on their promise to accept a lower rent despite the fact that the promise was unsupported by consideration. Denning J “In my opinion, the time has now come for the validity of such a promise to be recognised. The logical consequence, no doubt is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration
  • Facts: High Trees leased a block of flats from CLP at a ground rent of £2,500. It was a new block of flats at the time the lease was taken out in 1937. The defendant had difficulty in getting tenants for all the flats and the ground rent left High Trees with no profit. In 1940 many of the flats were still unoccupied and with the conditions of the war prevailing, it did not look as if there was to be any change to this situation in the near future. CLP agreed to reduce the rent to £1,250 during the war years. The agreement was put in writing and High Trees paid the reduced rent from 1941. When the war was over the flats became fully occupied and the claimant sought to return to the originally agreed rent.
  • Held: The rent would be returned to the originally agreed price for the future only. CLP could not claim back the arrears accrued during the war years. This case is important as Denning J (as he then was) established the doctrine of promissory estoppel. Promissory estoppel prevented CLP going back on their promise to accept a lower rent despite the fact that the promise was unsupported by consideration.
  1. The first requirement of promissory estoppel is that the promisor must give clear and unambiguous statement that he does not intend to enforce his legal rights. The promise may be express or implied.
  2. The second requirement is that promisee must have acted on that promise made by the promisor.
  3. The third requirement of promissory estoppel is that it would be inequitable for the promisor to renege on his promise and claim his strict legal rights after the promisee had relied on it.
  4. The fourth requirement of promissory estoppel is that it cannot not be enforce against the promissor. Thus it can be used only as a defence and thus cannot be used as a sword.




  • Durham City Fancy Goods v Michael Jackson (Fancy Foods):

Relationship between the two can be based on a statutory relationship, it didn’t have to be contractual. The statutory relationship in this case was the Bill of Exchange rights Donaldson J. held that contractual relationship is irrelevant provided that there is “a pre-existing legal relationship which could, in certain circumstances, give rise to liabilities and penalties”.

  • Henrik Sif:

in relation to promissory estoppel, the test of a legal relationship between the parties is satisfied when they are engaged in correspondence and one party intends that correspondence to have legal effect and the other, knowing of that intention, requests information or purports to grant extensions of time which would only be of relevance if the correspondence between them affected their mutual rights and obligations

Courts said you didn’t need a contract but the essence of a contract. Both believed that they were in a contractual relationship but they weren’t

The only thing that seems to be important is that the relationship must be of a legal nature.



This must affect the legal relationship between the two parties.

The content of the promise must be such that the promisee believes that the promisor won’t insist on full legal rights.

  • Woodhouse Israel Cocoa v Nigerian Produce Marketing

Involves the payment for cocoa, the promise is the promise to allow the payment in pounds and not in Nigerian dollars. Promise to ensure that the value of the contract stays the same.

HOL says there’s no clear or unequivocal promise. The relationship between the parties was too vague. The test for this is an objective test. Courts held, that the representation had not been sufficiently precise to found a variation of the contracts, or an estoppel.

A representation must be clear and unequivocal, and if a representation is not so made, it matters not that the representee should have misconstrued it and relied upon it. Held: that the representation had not been sufficiently precise to found a variation of the contracts, or an estoppel.



All that matters is a change in relationship between the two parties/contract. Denning- don’t need a detriment we just need a change. The only thing you need is a change in position of the parties e.g: a lost opportunity to enter into another contract, allocate money differently. It must be inequitable for our promisor to go back on the promise, i.e it must be unfair for them to go back.


  • The Post Chaser:

Lord Goff- need not be detrimental, what we need is a reliance of some kind, such as a change of position; such as a loss of opportunity or the redirecting of money saved from other expenses. The promise itself doesn’t need to have been the sole reason for the change of position, but it must be an inducement. Estoppel only takes effect where equity demands. There must be action taken on the representation by the representer but no detriment to the representee is needed.Estoppel is only a defence for the defendant.

  • WJ Alan v El Nasr:

Detrimental reliance is not required for promissory estoppel to apply. Promissory estoppel requires that the claimant party rely on the actions of the other party and alter their position as a result.


  • D&C Builders v Rees:

Facts: Plaintiff builder did work for d and they are owed about £500 by d. Plaintiff presses d for payment and eventually gets £300, no consideration in the case, but there is a change which is the promise to take less.

Denning states that in this case there is no consideration; therefore the agreement will not stand in common law but might be allowed in equity. However, he states that the pressure placed on D. & C. by Rees forced them to accept an agreement that was unsatisfactory. Therefore it would not be inequitable to allow the creditor to claim the rest of the money, and thus the appeal is dismissed.



Tool Metal Manufacturing v Tungsten Electric:

Tungsten- reaffirms what comes out in high trees. If promisor insists on their full contractual rights then they have to give notice to the promisee. Estoppel doesn’t extinguish the main legal rights under the main contract at all.

Held: TMM could not enforce the compensation payments during the war years but could enforce them on termination of the war. TMM were estopped from going back on their promise to waive the payments in equity. Generally promissory estoppel will merely suspend legal rights rather than extinguish them. However, where periodic payments are involved and a promise has been made to reduce the payments because of pressing circumstances which are not likely to persist, promissory estoppel can be used to extinguish legal rights.


  • Combe v Combe:
  • Facts: Combe- husband and wife case. Wifey is trying to sue hubby for outstanding maintenance claims. No consideration for the husbands promise to pay the wife maintenance. She was using promissory estoppel to found her case against her husband.
  • At first instance she actually won. but when it went to the CoA rejected it. He uttered the immortal words. It can’t be used as a cause of action, but you can only use it as a defence. That isn’t the same as saying that the d uses promissory estoppel. You can only use it as a defence to something. Estoppel is only a defence, not a cause of action where one did not exist before.

“Much as I am inclined to favour the principle in High Trees, it is important that it should not be stretched too far, lest it should be endangered.” Per Denning LJ. Denning, writing for the court, clarifies his words concerning estoppel from High Trees. He clearly states that it cannot be used as a cause of action, but only as a defence when someone is trying to claim that a promise they made did not have consideration and is therefore not binding; estoppel is a “shield”, not a “sword”.


  1. Promises prohibited by legislation:
  • Evans v Amicus Healthcare: Evans- embryos created by ivf for couple, prior to implantation of embryos into woman, the man withdrew his consent. Woman used promissory estoppel as a defence against the man’s claim to withdrawing consent. Courts said you can’t use it in this case even if the criteria are all present as the issue is too contentious.




Collier v P&MJ Wright:

Arden LJ held that Foakes v Beer applied, but referring to the ‘brilliant dictum’ of Denning J in High Trees, held that promissory estoppel could aid Mr Collier. Where he had been assured that he could repay only part of the debt, he had relied on the assurance by making his payments, Wright Ltd resiling from the promise ‘would of itself be inequitable’ [42].

“Where a debtor offered to pay part only of the amount he owed and the evidence showed the creditor voluntarily accepted that offer, and relying on that acceptance the debtor paid that part of the amount he owed in full, the creditor would be bound to accept that sum in full and final satisfaction of the whole debt by virtue of the doctrine of promissory estoppel.”



Crabb v Arun:

  • Facts: The Plaintiff owned land with access from access point A to a road owned by the Defendants and a right of way from A along the road.To sell his land, the Plaintiff sought from the Defendants another access point (point B) and another right of way along the road. Point B was agreed in a meeting with the Defendant’s representative; the Defendants fenced the land off and created gates at both points A and B. The Plaintiff sold part of his land and his access from point A. The Defendants then fenced off point B, leaving the plaintiff landlocked.
  • Issue: The Plaintiff brought an action for a declaration and an injunction, claiming that the Defendants were estopped from by their conduct from denying him a right of access to point B and a right of way along the road.
  • Held: Knowing that the Plaintiff wanted to sell his land, the Defendants, through their representative, led the Plaintiff to believe that they would grant him access to point B. By erecting the gates and failing to correct his belief, the Defendants encouraged the Plaintiff to act to his detriment in selling part of his land without reservation over it, giving rise to an equity in the Plaintiff’s favour. The right of way from point B should thus be granted without payment. The defendants were thus estopped from denying that the plaintiff had a right of way (an easement) from point B.
  • in the peculiar situation of land consideration isn’t necessary. Short of an actual promise, if he, by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights – knowing or intending that the other will act on that belief – and he does so act, that again will raise an equity in favour of the other: and it is for a Court of Equity to say in what way the equity may be satisfied. The cases show that this equity does not depend on agreement but on words or conduct.


Cobbe v Yeoman’s Row Management:

  • Effect of the case: In particular, it seems that in a case where B relies on a non-contractual promise by A that A will give B a right in the future, it will no longer be possible for B to invoke the doctrine of proprietary estoppel. B’s protection, if any, will instead depend on constructive trust principles or unjust enrichment.
  • Facts: A makes a non-contractual promise to B that he will give B a right in relation to A’s land. B acts in reliance on his belief that A will indeed give him that right. As a result, B would suffer a detriment if A were to renege on the promise. Whether in domestic or commercial contexts, the courts have frequently protected B in such situations. The doctrine of proprietary estoppel was the mechanism by that protection was available. The reasoning of the House of Lords in Yeoman’s Row now precludes proprietary estoppel from fulfilling that role. The crucial question is whether that reasoning will cause courts (i) to abandon their long-standing protection of B; or, instead, (ii) to give effect to a desire to protect B through other means, such as the common intention constructive trust or unjust enrichment.
  • In Yeoman’s Row itself, the radical re-interpretation of proprietary estoppel was certainly not necessary for the decision reached by the House of Lords. That decision is consistent with the conventional view that proprietary estoppel does exist as an independent means by which B can acquire a right against A; it can be explained on the basis that, on the particular facts of the case, the parties had not made a sufficiently precise agreement in principle; nor had YRML made the necessary commitment to honour such an agreement. Maybe courts did this to cut the doctrine down to size.


Thorner v Major:

  • this case distinguished from Cobbe v Yeoman’s Row. Lord Walker held the elements for a proprietary estoppel are (1) a promise or representation by the defendant that the claimant has or will acquire some right in relation to the defendant’s land (2) the claimant’s reasonable reliance on this promise/representation (3) detriment suffered by the claimant by reason of his reliance on that promise/representation
  • In this claim by a nephew in respect of his uncle’s estate the nephew has established that he was entitled to his uncle’s farm on the basis of a proprietary estoppel.




Amalgamated Investment and Property v Texas Commerce:

where parties in their course of dealing in a transaction had acted upon an agreed assumption that a particular state of facts between them is to be accepted as true, each is to be regarded estopped as against the other from questioning with regard to that transaction the truth of the statement of facts so assumed


Petromec Inc v Petroleo Brasiliero:

Held:  knowingly creating or lending encouragement to an existing assumption might have the same effect as a representation and might in appropriate circumstances be sufficient to support an estoppel. an agreement to negotiate in good faith was unenforceable as being devoid of legal content


Johnson v Gore Wood:

  • Lord Bingham held that the test required to establish an estoppel by convention set by Lord Denning in Amalgamated Investment.
  • Lord Goff, however, cast doubt on Lord Denning’s attempt to identify a common criterion for the various forms of estoppel. The many circumstances giving rise to an estoppel could not be included within a single formula. Unconscionability, however, was something that was common to all forms of estoppel.





  1. Lawal kaosarat oluwadamilola
    17th February 2017 / 5:20 AM

    This has been really helpful

    • Raiine
      1st April 2017 / 12:59 PM

      Thank you for the comment and I am glad you found it useful!

  2. Terry
    23rd February 2020 / 9:14 AM

    Thank you so much for the summary. It’s been very helpful 🙂

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