Proprietary Estoppel Essay

â€Å"In Thorner –v- Major, the House of Lords confirmed that a claimant seeking to establish a proprietary estoppel must prove three things: (1) that the defendant’s assurances or conduct in relation to identified property were sufficiently clear and unambiguous in all the circumstances, (2) to lead the claimant reasonably to rely on those assurances or conduct; (3) by acting significantly to his detriment, so that it would be unconscionable for the defendant to deny him any remedy.† (Per Hayton and Mitchell: ‘Commentary and cases on the law of Trust and Equitable Remedies’, 13th edition, Sweet and Maxwell, page 78) Critically analyse and evaluate this statement in light of recent developments in the law of proprietary estoppel. Despite the lack of a definitive formulation, it is widely accepted that the elements of assurance, reliance and detriment must be present in order to found a claim of proprietary estoppel . The doctrine has however been widely criticised for being too flexible and uncertain. The main cause of this uncertainty is the lack of clarity surrounding the role of unconscionability. It has been stated that unconscionability is â€Å"at the heart of the doctrine,† and yet there is â€Å"little guidance as to what it means, little explanation of why it is at the centre and thus virtually no consideration of the role it might play in providing both a justification for, and a limitation on, successful estoppels† . Commentators have largely agreed that there is a â€Å"need to develop clear parameters for the operation of the doctrine, else it really will be a discretionary panacea for all ills whose application is unpredictable and uncertain. Prior to Thorner v Major [2009] and Cobbe v Yeoman’s Row Management Ltd [2008] it had been 142 years since a case of proprietary estoppel had reached the House of Lords. Therefore it was hoped that these cases would give the judiciary a long awaited opportunity to clarify the doctrine. In Cobbe Lord Walker stated that â€Å"Equitable estoppel†¦is not a sort of joker or wild card to be used whenever the court disapproves of the conduct of a litigant who seems to have the law on his side. Flexible though it is, the doctrine must be formulated and applied in a disciplined and principled way.† The House of Lords appeared determined to address the criticisms and it was hoped that they were about to define and clarify the doctrine, especially the role of unconscionability. Lord Scott, who gave the leading judgement, stated that unconscionability alone is never enough to found a claim of proprietary estoppel. â€Å"To treat a ‘proprietary estoppel equity’ as requiring neither a proprietary claim by the claimant nor an estoppel against the defendant but simply unconscionable behaviour is, in my respectful opinion, a recipe for confusion†. Lord Walker addressed the uncertainty over whether unconscionability is a separate element, by stating that â€Å"unconscionability†¦ does in my opinion play a very important part in the doctrine of equitable estoppel, in unifying and confirming, as it were, the other elements. If the other elements appear to be present but the result does not shock the conscience of the court, the analysis needs to be looked at again† . These emphatic statements confirmed that unconscionability alone is insufficient to give rise to a claim of proprietary estoppel and that the traditional elements must always be present. It is suggested however that these pronouncements did very little in practice to define or clarify the concept. The modern approach to proprietary estoppel which began with Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] adopted a â€Å"broad test of whether in the circumstances the conduct complained of is unconscionable without the necessity of forcing those incumbrances into a Procrustean bed constructed from some unalterable criteria.† Despite this statement the judgement in Taylor Fashions did not rely on unconscionability alone. The court required the three traditional elements to be present, albeit adopting a new claimant centred approach to establishing them. Therefore the statements in Cobbe regarding unconscionability are uncontroversial and do not significantly alter its position within the doctrine. The judgement in Cobbe was regarded as a severe curtailment of the doctrine and was believed to have greatly narrowed the scope of its operation. It was even thought that it had led to the ‘the death of proprietary estoppel’ This was not due to the outcome of the case, but due to the controversial reasoning behind this decision. Lord Scott attempted to rein in the doctrine by focusing on the traditional elements of proprietary estoppel and restricting the doctrine via their operation. He focused on the assurance or representation element, which requires that the claimant must have been led to believe that he has or he will acquire an interest in the defendant’s land. He stated that the required assurance was of a ‘certain interest’ and this meant that the claimant must specify the interest in the property he believed he had or would have. Cobbe dealt with a case of proprietary estoppel in a commercial context. Therefore Mr Cobbe’s â€Å"was not an expectation that he would, if the planning application succeeded, become entitled to â€Å"a certain interest in land† but an expectation â€Å"of further negotiations leading, as he hoped and expected, to a formal contract† . Lord Scott stated that this was not â€Å"the sort of expectation of ‘a certain interest in land’ that Oliver J in the Taylors Fashions case or Lord Kingsdown in Ramsden v Dyson had in mind† and so the claim failed. This requirement for a specific assurance narrowed the scope of operation of the doctrine and was inconsistent with previous Court of Appeal decisions such as Gillett v Holt and Jennings v Rice where a claimant had an expectation of a future interest in land. Lord Walker further restricted the doctrine by stating that the claimant must believe â€Å"that the assurance on which he or she relied was binding and irrevocable†. Therefore the claimant must not only believe that the landowner has made a promise, but also believe that the promise is legally binding. He made it clear that context was important. â€Å"In the domestic or family context, the typical claimant is not a business person and is not receiving legal advice†¦The focus is not on intangible legal rights but on the tangible property which he or she expects to get.† As the parties involved in Cobbe were â€Å"persons experienced in the property world, both parties knew that there was no legally binding contract, and that either was therefore free to discontinue the negotiations without legal liability†¦the fact is that he ran a commercial risk, with his eyes open† This restriction is also inconsistent with Gillett v Holt which â€Å"explicitly addressed, and rejected, the notion that the revocability of wills prevents a promise to make a will forming the basis of a proprietary estoppel claim.† Surprisingly it was Lord Walker who gave the leading judgement in that case and acknowledged here that â€Å"It may possibly be that some of the domestic cases might have been decided differently if the nature of the claimant’s belief had been an issue vigorously investigated in cross-examination.† Thus casting doubt on previous court of appeal authorities relating to testamentary promises . The reasoning in Cobbe left the doctrine in an uncertain position and â€Å"If taken literally, this reformulation would have curtailed the reach of estoppel, and perhaps that was the point†. Thorner v Major gave the House of Lords a chance to address these uncertainties and a further opportunity to clarify the doctrine definitively via the role of unconscionability. From the beginning the Lords made it clear that the decision in Cobbe had not â€Å"severely curtailed, or even virtually extinguished, the doctrine of proprietary estoppel (a rather apocalyptic view that has been suggested by some commentators).† Thorner dealt with proprietary estoppel in the domestic context. One cousin had worked unpaid on the other’s farm for nearly 30 years on the understanding that he would inherit the farm on his cousin’s death. The cousin died intestate and the claim of proprietary estoppel had been rejected by the Court of Appeal. One reason given for this failure was that the extent of the farm had fluctuated in the preceding years and so the interest the claimant expected to receive was not a sufficiently ‘certain interest’ as required following Cobbe. The Lords in Thorner made it clear that â€Å"the reasoning in Cobbe’s case†¦was directed to the unusual facts of that case† and that in Cobbe â€Å"there was no doubt about the physical identity of the property. However, there was total uncertainty as to the†¦property interest†¦In this case†¦there is†¦no doubt as to what was the subject of the assurance, namely the farm as it existed from time to time. Accordingly, the nature of the interest to be received by David was clear: it was the farm as it existed on Peter’s death. They confirmed that the assurances â€Å"should relate to identified property owned (or, perhaps, about to be owned) by the defendant.† and that â€Å"It would represent a regrettable and substantial emasculation of the beneficial principle of proprietary estoppel if it were artificially fettered so as to require the precise extent of the property the subject of the alleged estoppel to be strictly defined in every case.† Context is vital, whereas a specific certainty may be required in a commercial situation, this will not necessarily be required in a domestic context. The Court of Appeal had also required that the nature of the assurance be â€Å"clear and unequivocal† . This test for clarity of assurance was that required in promissory estoppel, and may have been adopted here due to the conflation of the two forms of estoppel by Lord Scott in Cobbe . The parties in Thorner were â€Å"taciturn and undemonstrative men† and the assurances mainly consisted of â€Å"oblique remarks† and therefore it was held that these assurances lacked the requisite certainty. The House of Lords loosened this restriction stating that â€Å"I would prefer to say †¦that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context† . As â€Å"the relationship between Peter and David was familial and personal, and neither of them†¦had much commercial experience†¦Peter made what were, in the circumstances, clear and unambiguous assurances that he would leave his farm to David, and David reasonably relied on, and reasonably acted to his detriment on the basis of, those assurances, over a long period.† The House of Lords had made it abundantly clear once again that everything is dependent on context. In a domestic context such as Thorner an oblique assurance may be ‘clear enough’ even though a commercial case such as in Cobbe may require a much more specific assurance. Lord Walker also rejected Lord Scott’s characterisation of estoppel â€Å"I have some difficulty with Lord Scott’s observation†¦that proprietary estoppel is a sub-species of promissory estoppel.† The House of Lord’s in Thorner also clarified that the correct approach for landowner’s intention was an objective test and that it was â€Å"enough that the meaning he conveyed would reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon†¦It is not necessary that Peter should have known or foreseen the particular act of reliance†. The House of Lords allowed the proprietary estoppel claim to succeed even tho ugh there was no evidence that the claimant believed that the assurance was legally binding, therefore also rejecting Lord Walker’s restriction in Cobbe. Thorner had maintained a flexible approach to proprietary estoppel making it clear that everything was â€Å"hugely dependent on context†, re-affirming the holistic approach found in Gillett that â€Å"in the end the court must look at the matter in the round.† Lord Neuberger stated that â€Å"it appears to me unlikely in the extreme that Lord Scott was intending impliedly to disapprove any aspect of the reasoning or decision of the Court of Appeal in Gillett’s case† Thorner effectively placed the doctrine back in the position it stood before Cobbe. It was said that the decision in Thorner had â€Å"brought proprietary estoppel back from the brink. The apocalypse†¦has been averted and proprietary estoppel can continue to function as an independent source of rights. It can thus perform its vital role as a broad and flexible doctrine.† Thorner has clarified some of the uncertainties surrounding the traditional elements of proprietary estoppel that had been raised in Cobbe and followed in the Court of Appeal. It returned the formulation to a flexible and broad definition requiring ‘identifiable property’ that the assurance must be â€Å"in the circumstances, clear and unambiguous† and that the assurance must â€Å"reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon. Thorner did not however say anything regarding role of unconscionability, only affirming the uncontroversial position taken by Cobbe, whilst confirming the flexibility of the doctrine. â€Å"Concentrating on the perceived morality of the parties’ behaviour can lead to an unacceptable degree of uncertainty of outcome, and hence I welcome the decision in Cobbe’s case†¦However, it is equally true that focussing on technicalities can lead to a degree of strictness inconsistent with the fundamental aims of equity† . Some commentators believe that this was an opportunity missed as â€Å"Lord Scott may have chosen the wrong train to ride in Yeoman’s Row, but it is not clear that he chose the wrong destination† Defining ‘unconscionability’ is a difficult task and commentators have their own competing theories. Dixon believes that â€Å"an estoppel is made out when a landowner makes a ‘double assurance’ – an assurance that the claimant will have some right over the representor’s land†¦combined with an assurance that the right will ensue even if the formalities necessary to convey that right are not complied with†¦Unconscionability exists when a ‘formality assurance’ is withdrawn after detrimental reliance † Balen and Knowles believe that â€Å"this â€Å"extra ingredient†, for so long described as â€Å"unconscionability†, requires the court to ask whether the basis, or condition, on which the claimant incurred her detriment has failed.† There is no consensus as to how unconscionability should be defined only that it should. It may be that the judiciary have missed an opportunity to clarify the doctrine or it could be that they have no desire to â€Å"define unconscionability and thereby limit the application of the doctrine†¦Uncertainty can be a benefit as well as a burden, and while unconscionability of itself cannot generate an estoppel, the claim can be denied despite t he presence of an assurance, reliance and detriment by judicious deployment of the ‘unconscionability’ card†.

Contrast/Comparison Essay on Horror Movies

Lexus Marshall English 101/Sec 011 Comparison & Contrast Essay 10/16/12 Ms. Watkins In two horror films, â€Å"A Nightmare on Elm Street† and â€Å"Texas Chainsaw Massacre† the main killers have similarities and differences between each other. By their past, their killings, and weapons. In the horror film, â€Å"A Nightmare On Elm Street†, takes place in a town called Elm Street where teenagers are paying the price for actions their parents made, by burning a man to death, when they were young.His face is disfigured from being burned, he wears a red and black sweater, and has razor knives on his hand. His name was Freddy Kreuger, and he would kidnap young children and burn them in a furnace. Although the parents killed him when they found out what he did, his spirit didn't erase and he had the ability to enter the teenagers dreams where he can exact his revenge. He brings them to an old abandoned building in their dream and stabs them with a glove that has razor knives.Unless they escape, which eventually he catches them. Except for one of the teenagers named Nancy Thompson, who manages to escape him every time. In the other horror film, â€Å"Texas Chainsaw Massacre†, a serial killer named Thomas Hewitt, also known as Leatherface, murdered people who would pass by their small Texas town. Unlike the film â€Å"A Nightmare On Elm Street†, the town is stranded and not a lot of people live there.Thomas Hewitt, who was abandoned as a baby turns into a murderer. Unlike Freddy Krueger, Thomas first sometimes tortured his victims in horrific ways by skinning them alive. He makes a mask with the skin he took off to make a mask for his face, Because when he was born his face was disfigured. He takes the people that he finds brings them into his house and commits the killings in his basement with a chainsaw, which people soon thought he was in love with. There were no survivors.The similarities between both the murderers in the films ar e that they both are serial killers who lived a rough childhood. Both were bullied by other children growing up. And thought of killing at a very young age. They also both have disfigured faces, but from different reasons. In two horror films, â€Å"A Nightmare on Elm Street† and â€Å"Texas Chainsaw Massacre† the main killers have similarities and differences between each other. Although one is fictional and the other is based on true events, they both still have

Analysis of “Mr Sookhoo” and “A Cat Within”

Money has been, throughout the history of humanity, an end and an aim for human action. In their pursuit of money, people have followed different paths; some honourable, legitimate and legal and others devoid of legality, honour and legitimacy. Indeed, in the short story collection Stories from Around the World complied by Hilary Patel, many stories examine the impact of money and financial considerations on the decisions that many characters make. In â€Å"Mr Sookhoo†, the eponymous character is immediately identified to the reader as someone whose sole concern in life is the accumulation of wealth and riches. Mr Sookhoo, sitting on his porch and chewing at a tooth pick discloses an ingenious idea to his helpless wife: he informs her that he aims to deploy religion as a tool for making easy money. Mr Sookhoo's plan is simple; knowing that religious people give generously around the festive season especially when presented with a group of innocent carol singers raising money for charity, he decides to fabricate an institute for the blind, deaf and dumb and to use local school children to achieve his selfish money-making aims. Sookhoo shows total disregard to morality putting his personal financial gain at the top of his priorities. Also you can read Analysis July at the Multiplex When Mr Sookhoo's plan starts paying dividends in the form of good takings on the very first day of his carol singing project, he immediately resolves to work his young assistants (who are not, of course, aware of his malicious intentions) longer hours giving them little rest. Moreover, when Mr Archibald, the Headmaster of the local school attended by the carol singers, suggests treating the children to ice-cream, Mr Sookhoo chooses to ignore the suggestion buying the children only a carbonated drink that clearly costs less than the ice-cream. It is clear here that Sookhoo is oblivious to anything but his obsession with making easy money. In Christianity, Sookhoo is guilty of the sin of avarice or greed which is one of the seven deadly sins that signal total loss of faith. In the story, Mr Sookhoo is not a Christian but pretends to be one convincing Mr Archibald that he had â€Å"seen the light† in order to gain his approval for sending children with him on the carol singing mission. Mr Sookhoo's avarice leads to his eventual downfall when he is found out and captured at the end of the story. Sookhoo's avarice leads to a snowballing of unfortunate occurrences that upset the money-making plan that seemed to be going too well. All at once many characters appear in the story pushing, as it were, one more nail into Sookhoo's coffin. First, Mr Ali, who had previously paid Sookhoo to deliver some gravel for him, appears and exposes Sookhoo's failure to keep his end of the bargain. In addition, Mr Archibald, who started harbouring doubts about Mr Sookhoo when the latter's account of the carol singing successes did not correspond to what Mr Archibald was told by a young pupil called Horace, receives a visitor by the name of Mr Harris (who is a real philanthropist working in the charity field) who confirms to him that the deaf, dumb and blind institute does not exist. These revelations and findings raise tension in the story and drive the plotline towards its climax when Mr Sookhoo's love of money brings about his downfall and arrest. Read also Analysis of Characters in Flannery O’Connor’s â€Å"The Life You Save May Be Your Own† At the end of the story, poetic justice is upheld as the aggressor and wrong doer is punished while the good are rewarded. â€Å"Mr Sookhoo† ends on the note that a blind love of money can only lead to negative consequences. The price that Sookhoo pays for being a slave to money and materialistic gain is no less than his freedom. Mr Sookhoo's metaphorical slavery (signaled by his servitude to anything that can lead to making money) at the beginning of the story becomes the cause of his physical incarceration, which is a form a slavery, at the end. Although in the case of Mr Sookhoo, poetic justice is upheld as good is rewarded and evil is punished, the so-called â€Å"cliff-hanger† ending of â€Å"A Cat Within† where the reader is left to decide whether justice will be at all served, contrasts to the message of â€Å"Mr Sookhoo. † In â€Å"A Cat Within,† where the symbol of the cat acts as a reminder of a dark secret that comes back to haunt the un-named â€Å"Shopman† in the story, the love of money seems to have caused a series of crimes much weightier than those committed by Mr Sookhoo, but there is no indication that these crimes will be punished. In fact, one possible interpretation for the blurred ending of the story is that the Exorcist's own love of money will prompt him to eternally blackmail the Shopman in order to keep his crimes safely tucked away and hidden like the cat's head stuck in the metal urn. â€Å"A Cat Within† ends with the Exorcist withdrawing into his room but reminding the Shopman that he will request his pay later. This reminder could be read as a covert threat and a prelude to a life-long blackmail project the Exorcist hopes to embark on. In â€Å"A Cat Within,† both the Shopman and the Exorcist display their extreme attachment to money. On the one hand, the Shopman keeps his tenants in dire living conditions and sacrifices his own comfort by sleeping in the doorway to stop intruders from coming into his house. On the other hand, the Exorcist makes his living by giving the false impression that he is curing people from obsessions by demons and other supernatural evil beings. When the Exorcist is called upon to help with the assumed â€Å"evil spirit† wreaking havoc in the shop store, his world that places money at the top of the consideration list and the world of the Shopman, where money occupies the same place, meet. Read also  Case 302 July in Multiplex The Exorcist being adept at reading people like a book, manages to speculate accurately about the Shopman and the way he came to accumulate his wealth. It transpires that the Shopman killed a man and his widow before taking their land and money. However, unlike Mr Sookhoo, the Shopman remains free at the end with the cat, a symbol of his dark secret, roaming in the streets with a jug on its head. The symbolism of the cat slipping out of the store but with its head still caught inside the jug suggests that the Shopman's secret is only half revealed.

Grades have been around for LONG TINE Research Paper

Grades have been around for LONG TINE - Research Paper Example This applies to both underperformers and great performers. For the former they get motivated to change their previous study method and improve while great performers get motivated to keep up their good performance. However, it should be noted that grading in some instances may discourage students especially if they are biased (Hargis, pg12). The second group is the parents who get the opportunity to provide guidance to their children based on the feedback. Like parents, teachers use the grading system to guide students, particularly with regard to their future career. Such is the case that teachers will employ grades when making initial decisions on student strengths and weaknesses. This serves as a first step when grouping them for instruction. The last group is the administrators that find grading handy in matters such as Placement when students transfer from one school to another, Student matriculation and retention, and Student entrance into college. Yes. Grading is very vital since it provides the feedback deemed important in assessing progress and making necessary educational plans (Moen, and Martin, pg7).I don’t think there is any other better way to assess student’s achievement and I propose grading systems should be maintained in all areas of

Critical Analysis of a Research Article-Driving Behavior of Licensed Essay

Critical Analysis of a Research Article-Driving Behavior of Licensed and Unlicensed Teeagers - Essay Example The hypothesis in the article on driving behavior of licensed and unlicensed teenagers concerns the undesirable effects of teenage driving. It has been observed that teenagers are involved in a higher number of accidents as compared to other groups of people leading to a high death rate and serious injuries. The study determines the prevalence and the risks and associated factors for unlicensed drivers in their teenage years. The major purpose of the study is for exploratory reasons. This kind of study is a form of social research that is conducted by use of questionnaires and formulation of hypotheses. The current case of study is appropriate for this kind of research as it does not have to endorse its typicality. The students who took part in the research gave details about their race, driver education history, alcohol or substance use and their grades in the previous month. The students also gave information on how often they drove and for what purpose. The students also gave information on the most helpful person in teaching them how to drive and the driver’s education. The school location was also an important variable and it was classified into rural, town, suburban and central city. Students were also expected to report on their driving behaviors and occurrences including number of accidents experienced, number of hours driven weekly, the use of seatbelts and the speeding rate they used according to American Academy of Pediatrics (2010). A national representative school based survey was carried out to establish whether students in their teenage years practiced unlicensed driving, the associated behaviors, the risks they are exposed to and demographic factors. Unlicensed driving is driving when one has no official license or when one is not authorized to do so. American Academy of Pediatrics (20100 explains that the survey was conducted on all school attending students regardless of their

Contemporary Issues in Leadership & Management Essay

Contemporary Issues in Leadership & Management - Essay Example in Newcastle England with a student population of over 40,000 students and over 6000 students being full time students while the rest are part- time students. The students come from all over the world with over 40 different nationalities. It’s based next to the train station, metro station and the international airport thus making it easily accessible. The mission statement of the institution aims at meeting the educational needs of the students, providing quality education, value and appreciates the diversity of its community, provide modern resources. It also involves valuing their students and members of staff while securing a future for the institution through growth and development. They offer various courses in different professions such as film studies, business studies, accounting, information technology, economics, English and literature, government, history, journalism, politics and physics. The college has an ultra modern lifestyle academy worth over 16 million pounds with a sports, tourism and beauty centre. It has an excellent restaurant facility, a gym and also a salon for students to relax and rejuvenate after a long and tiresome day. The salon is located at the top most floor of the building with excellent facilities for hair treatment, hair cuts and a nail bar and the services are available at affordable prices. They also have cardiovascular equipment, training machines, a fitness studio and they offer various classes in yoga, Pilates and different kinds of exercises to allow the students to keep fit. While at the Spa, students can enjoy Jaccuzi, relaxation beds, steam baths and a whirlpool .They also boast of the finest restaurant with great menus to enjoy. At the performance academy, they have a theatre that allows all the students to relax. It has a recording studio, a radio station, dancing studio, media production facilities, and performance theatres.The Mandela building has offered the Art and design students an opportunity to express

Choose two anthropology questions in this six questions and answer Assignment

Choose two anthropology questions in this six questions and answer - Assignment Example As a rite of passage, hajj represents a change in faith as Muslims who attend this annual pilgrimage are considered to have attained great faith in their religious beliefs. Hajj is also a rite of passage because it is a ritual worship that members of the Islamic faith are expected to fulfill (Tagliacozzo 4). The concept of the â€Å"one-and-the-many† can be said to relate to the notions of whether Hinduism is a monotheistic or polytheistic religion. Based on this concept, one understands how the multiplicity of Gods is an issue of concern in the Hindu religion. Among the Hindus, there is a tendency to worship many Gods as opposed to worshiping a certain religious deity. The various deities in the Hindu religion are a representation of a single supreme being known as Brahman. Hindus do not worship many gods; rather, they have only one god and different deities (Morgan