I.

HISTORY OF THE DOCTRINE OF ESTOPPEL

1. Definition: “an admission, or something which the law treats as equivalent to an

admission, of an extremely high and conclusive nature – so high and so conclusive that
the party whom it affects is not permitted to aver against it or offer evidence to controvert
it.”
2. Section 115 of the Indian Evidence Act, 1872: “ when one person has , by his
declaration , act or omission , intentionally caused or permitted another person to believe
a thing to be true and to act upon such belief , neither he nor his representative shall be
allowed, in any suit or proceeding between himself and such person or his representative,
to deny the truth of that thing.”
3. allegans contraria non est audiendus (a person alleging contradictory facts should not
be heard ), a species of presumptio juris et de jure, where the fact presumed is taken to
be true, not as against all the world ,but as against a particular party.
4. Similarity between Irrebuttable presumptions of law and Estoppels.
a. There is no need for further evidence; the party who can show that his opponent is
estopped, will win.
b. Difference:
i. Irrebuttable presumption is effectively a rule of substantive law. When
certain facts exist, a particular inference shall be drawn.
ii. Estoppel is rule of evidence that when, in a litigation, certain facts are
proved, no evidence to combat these facts can be received.
5. This View Is Modern. Not the original view.
a. 12th and 13th centuries cases were decided not by processes of reasoning from
evidence offered, but by modes of proof selected by the parties or ordered by the
court.
b. Modes of proof were like battle, compurgation or ordeal. Modern ideas about
trial, with the development of the jury system (adjudication of facts in light of
evidence), introduced the modern concept of estoppel. Lawyers disregarded facts
which created estoppel as a mode of proof, and began to see them as a conclusive
presumption (estoppel by deed and by matter in pais) which precluded the
 necessity of offering further evidence. (raised by a statement in a record OR by
the parties’ own words or acts.)
6. It is, in its most important modern form, simply a rule of evidence.
7. We must first deal with the older modes of estoppel by record, by deed , and by matter
in pais ; and , secondly, with the evolution, from the basis of estoppel by matter in pais,
of the modern doctrine of estoppel by conduct .

A. ESTOPPEL BY MATTER OF RECORD.

8. General Principle - a matter solemnly recorded by the King’s court must be accepted as
proof, so that no averment to contradict can be received. This conclusive quality and its
absence in matters in other courts, emerged in the early 12th century. A record of the
King’s court cannot be denied, though judgments of other courts can be denied by men
who were present and understood the plea (Leges Henrici Primi).
9. Same distinction. All matters recorded by the King’s court, and authenticated by his seal
– not only judgments, but also other transactions enrolled thereon – were records, and
were accorded the same conclusive effect. (Glanville)
10. Conclusiveness illustrated in Reports from the days of the earliest Year Books.
a. In 1293, it was said that a judgment of the King’s Court could not be proved by
the country, but only by the Rolls, which were sufficient as proof.
b. In 1307, it was said that a thing argued from record was conclusive as to preclude
a further trial.
c. Coke emphasizes that a record cannot be contradicted either by the verdict of a
jury, or, a fortiori, by an averment of the parties to an action. However, the reason
given for incontrovertibility and estoppel which resulted from it was different
than in 12th and 13th century.
i. Hynde’s Case (1591): “for avoiding of infiniteness which the law
abhors”, (chief reason for the conclusive effect of the fine, one of the most
important of matters of record. In Middle Ages)
 ii. As Idea of Trial Changed, it was thought that estoppel was based not on
the production of a record as mode of proof, but upon the Roman Idea,
that there ought to be a decent finality about decisions. This gave the
doctrine rational basis – suited to modern ideas about procedural matters.
iii. Matters of record were allowed to operate as estoppel, according to
rational considerations: contents of the record; the need to harmonize the
rules governing this estoppel with other legal rules.
iv. End of the medieval period – Rules
1. Regarding statements which would give rise to an estoppel
2. Parties bound by an estoppel
3. Qualities which a statement must possess to create estoppel.
v. Basis of Rules were sound and sensible; but obscured in the Middle Ages
by technicalities. When real actions passed, the doctrine was relieved of
much technical rubbish which had been added; In the 19th Century, many
technicalities of special pleading were abolished, and the justice and good
sense of the principle became obvious.
vi. It became in effect a maxim which gave rise to the maxim nemo debet bis
vexari pro eadem causa.

B. ESTOPPEL BY DEED

11. Statement made by the parties in sealed writing was conclusive proof. If a party could
produce a sealed writing which showed the other to be bound, the other party was
estopped by his deed.
12. Wigmore: estoppel by deed grew out of estoppel by record. King’s Seal to a Deed was
the important consideration. Extension of the seal from the King to private persons in the
11th -13th century.)
13. Effects, influenced
a. growth of documentary evidence law.
b. the law of property
i. rule that certain incorporeal things could be created or conveyed by deed.
c. law of contract.
 i. early appearance of the speciality contract
ii. idea that an agreement could give rise to a legal liability.
14. In early years, the estoppel by deed operated as a mode of proof.
15. In the 16th century the rule was supposed to be based on the necessity of allowing the
court to see the deed, to judge sufficiency, and thus influenced the development of the
manner of bringing documentary evidence before the court.
16. Deeds, like Records, amounted to proof and thus produced estoppels. Similar rules were
thus applied.
17. Differences
a. 1584: though the parties might be estopped by a deed, the jury were not estopped.
b. Estoppel by Record as modes of proof, was inapplicable to with new procedural
ideas; and so this old idea didn’t work with estoppel by deed either –gradually
came to be seen as based on the act of the party in authenticating by his seal a
document which placed him under some liability to another.
18. Estoppel By Matter In Pais, helped lawyers to realize the new basis of estoppel by deed
and paved the way for the recognition of the modern principle of estoppel

C. ESTOPPEL BY MATTER IN PAIS

19. Coke’s Examples: livery of seisin , entry , acceptance of rent , partition , and acceptance
of an estate – all acts more or less notorious , of which the “ the pays” might be expected
to have cognizance.
20. Earliest distinct recognition – 1445 – Newton: acceptance of rent , exchange , or
partition might estop. Recognition of underlying principle was easier because often the
conveyance of an estate would be by deed, so that its acceptance could be based upon the
principle of estoppel by deed.
21. Finding the Principle. But, as it was clear that estoppel by matter in pais depended on
the principle that it was the estopped person’s own act which prevented him from setting
up a different state of facts, it helped to teach the lawyers that estoppel by deed really
depended also upon this principle.
22. Failure of Development. This principle, however, in the 16th and 17th centuries, failed
to develop broadly.
 a. Land Law and Tenancy. Applied in land law; and in relation to land law it was
developed minutely – Well established that a tenant is estopped from disputing
the landlord’s title while he is in possession under, and during the continuance of
the lease, though he may show that the title, which the landlord once had expired;
and conversely the landlord is estopped from repudiating such a tenancy.
23. New influences were necessary, before the doctrine could be freed from technicality, and
entered into the service of the modern common law and found in the developing
Chancellor’s rules (late 17th century), and in developments in mercantile law (18th
century).
24. Growth
a. Chancellor’s cases (late 17th and early 18th century):
i. 1649 – Hunt v. Carew – held that the defendant who had led the plaintiff
on to purchase the lease by the statement that the father had power to grant
it, must join with the father to confirm the lease. The decision was
grounded expressly on the fact that the fraudulent affirmation of the son
had led to the expenditure of money by the plaintiff. At first this principle
was applied only to fraudulent affirmations.
ii. 1682 – Hobbs v. Norton – Lord North held that a defendant was
estopped by negligent misstatements as to title.
b. Lord Mansfield imported these principles into Common Law.
i. 1762 – Montefiori v. Montefiori – One Joseph Montefiori, being engaged
in a marriage treaty , got his brother Moses to help him , by representing
him to be a man of fortune. Moses gave him a note for a large sum of
money , which he acknowledged to have in his hands on account of his
brother , though no such money was due. Joseph refused to give up this
note after marriage and Lord Mansfield held that he was not bound to do
so. He said : “ The law is that where , upon proposals of marriage , third
persons represent anything material , in light different from the truth , even
though it be by collusion with the husband , they shall be bound to make
good the thing in the manner in which they represented it. It shall be as
 represented to be.” This decision was cited by Lord Thurlow in 1782 in a
similar case.
c. Root principle of estoppel by conduct was in effect recognized both by the
courts of common law and by the court of Chancery in the late 18th century
till it finally came to be clearly enunciated by Lord Denman in 1837 in the case
of Pickard v. Sears.
25. The sketch of the principle of estoppel shows how a principle, originating in the early
days when main interest in an action centered round the modes of proof , was gradually
adapted to a changed order of ideas upon matters procedural. In one of its earliest forms –
estoppel by matter of record – it was adapted to the purpose of securing a decent finality
to litigation; and in its other forms it was adapted to secure the honest fulfillment of
representations., a belief in which had induced another person to take action. Here as in
other branches of the law traces still remain of the stages by which the result has been
accomplished. The accepted classification of the various forms of estoppel indicates the
milestones which mark the road by which the law at length reached the broad principle
which underlies the modern doctrine of estoppel by conduct.