Introduction
Unconscionability of cases relating to promissory estoppels is numerous and this very factor has been used to determine cases justly. It has been used to overcome weaknesses in promissory estoppels where cases were ruled without consideration of all the facts on the table. According to Winshart (), promissory estoppels apply in exceptional cases where there is no consideration and is not to be used to enforce a promise. It should supplement and not usurp consideration in cases. Besides, it should be understood that promissory estoppel cases are not fully recognised under contractual law but rather depend on the context in which the case is presented. Thus, the extent to which the cases are determined will depend on consideration attached to it. Contracts are only enforceable if they have consideration, formalities or promissory estoppels.
Cases considered under promissory estoppels and recognised as unconscionable behaviour would be actionable as provided by the law.This is the whole aim of judges in determining cases involving promises. Some academicians have differentiated promissory estoppel for proprietary estoppels in which they state the former is weaker and cannot be relied on their own to determine promissory cases. Some argue that promissory estoppels fall under proprietary estoppels. Whereas in promissory estoppels, the claimant is usually led to believe that the promise would not be enforced; in the latter, the claimant desires to acquire some property in question as a result of having the promise enforced (Hudson, 2009).
Comparison of Cobbe and Thorne cases
The difference in both cases depended on and only on the unconscionability factor and other factors relating to it. One such other factor is the issue of constructive trust. Mr. Cobbe was not awarded interest on this basis and mere unconscionabiliy on the part of Mrs. Lisle-Mainwaring could not be relied on in determining the case. The agreement between the two was not legally binding and both parties were aware of it. In this case, Mrs Lisle-Mainwaring changed her mind and demanded more fees from the Yeoman Row that was developed by Mr. Cobbe. On this account, Mr. Cobbe went to court to demand interest on basis of proprietary estoppels. In constructive trust, there is an agreement expressly stated to share property. This was not present despite that fact that there was a certainty about identification of the property. However, Lord Scott could not determine the interest arising from the land, making it difficult to apply proprietary estoppels in determining the case.
Proprietary estoppel requires three conditions for it to be enforced. There must be representation, reliance and detriment; and not unconscionability alone as was in the case of Cobbe. This was stated by Lord Scott as thus:
“… unconscionability of conduct may well lead to a remedy but, in my opinion, proprietary estoppel cannot be the route to it unless the ingredients for a proprietary estoppel are present … 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 … a recipe for confusion” (para.16).
These statements seemed to undermine applicability of proprietary estoppels. While Lord Scott and Walker viewed proprietary estoppel as a solution to deliver justice and prevent losses arising from circumstances of promises, the ruling on Cobbe surprised many and attracted lots of debate on the subject. Wacks () commented that equitable estoppels (promissory and proprietary) are used to mete out justice by “providing relief” against unconscionable behaviour and are not meant to make “good representations” (p. 466). This contradicts the ruling on Cobbe by Lord Scotts in which ruling could not be based on mere unconscionable behaviour to justify without there being considerable evidence to justify payment favourable ruling in awarding of interest.
