ABSTRACT
Estoppel by record is used in civil proceedings and covers the principles of res judicata which determine when parties will be bound by judgments issued in previous proceedings between them. Estoppel by deed is a rule of evidence,109 whereby parties are bound by solemn and unambiguous statements contained in a deed which they have executed.110 It does not, itself, give rise to a cause of action, but will merely prevent the party estopped from contradicting the statement in issue. Estoppel in pais is further divided into four different categories. Estoppel by representation and convention operates where, in a legal relationship, one party leads the other party to believe that a certain state of facts exist.111 Both of them operate to set up a state of facts, which determine the legal outcome between the parties112 and, accordingly, are used only as a defence mechanism. Proprietary estoppel operates where the first party leads the second party to believe that he will obtain an interest or right over the first party’s property.113 This type of estoppel is unique, in the sense that it is a source of legal obligation in itself and, in some cases, may give rise to a cause of action. Finally, promissory estoppel (equitable forbearance) operates where, in a legal relationship, one party (promissor) leads the other party (promisee) to believe that promissor’s rights under a contract or other legal relationship will not be enforced.114 Three factors
109 Greer v Kettle [1938] AC 156, p 171, per Lord Maugham (obiter); Re Distributors & Warehousing Ltd [1986] BCLC 129, p 139, per Walton J.
