original position. This could have been done in Hughes, but not in High
Trees for the period of the war years.4 It was stated quite clearly in this case that promissory estoppel does not
strike at the roots of the doctrine of consideration. Consideration is still
essential to the formation of a contract, but not necessarily vital to its
variation.
So, to assess the circumstances in which the doctrine of promissory
estoppel will operate, the following conditions are necessary:
- There must be an existing legal relationship between the parties. In High
Trees this was the contract for the lease of the property between the
owner of the property and the defendant. - The plaintiff deliberately waived his legal rights against the defendant.
In High Trees the owners chose to reduce the rent (in fact, on this
occasion it was in their interests to do so). In Baird Textiles Holdings v
Marks and Spencer (2002) it was said that the statement of waiver must
be very clear. Here it was held to be too uncertain and the claim of
estoppel failed. - The defendant gave no consideration for the waiver of contractual rights.
In High Trees there was no stated consideration to reduce the rent – it
was a one-sided gesture. However, it could be argued now, in the light of
Williams v Roffey, that in High Trees the benefit of not having the
property standing empty, and having a reduced rent instead of none at
all, was a benefit to the owners (remember in Williams v Roffey the
benefit to the builders was not having to look for new carpenters and
avoiding the payment of a penalty to the owners of the building). - The defendant altered his position as a result of the waiver, so that it
would be inequitable to allow the plaintiff to succeed merely by lack of
consideration. In High Trees the defendant certainly would not have
continued with the lease at full rent. Since he had relied on the
reduction, and there was no way that he could have recovered the rent
for the war period, it would now be inequitable to ask him to pay full
price for that period.
Promissory estoppel is still a developing doctrine, with its origins in equity.
This means that the usual principles of equity apply, and this is seen in the
following case.
Consideration 61D and C Builders v Rees (1966)
The plaintiff builders did work for the defendant family. When it was
not performed satisfactorily the defendant paid part of the amount