We have all been in a situation where there is the written rule and then there is the way things are actually done. When people are dealing with each other under a contract, there are a thousand little things that are simply understood between the parties without actually being written in the contract. Sometimes, the ‘understandings’ even contradict the contract. So what happens when push comes to shove and there is a dispute about whether the ‘understanding’ rules the situation or whether the written contract governs the situation?
In common law, over centuries, judges have realized the truth of this phenomenon and named it estoppel. Judges will sometimes ‘estop’ a contractual party from enforcing a contract term against the other party because there was an unwritten ‘understanding’ that, in effect, over-ruled the contract.
The most important English explanation of this estoppel idea was laid down in a case referred to by lawyers as ‘High Trees’.
The most recent Ontario Court of Appeal case is called ‘Grasshopper’.
estoppel: the latest ONCA case (with an economic argument)
The most recent Ontario case of ‘proprietary’ estoppel is:
Proprietary Estoppel: latest case in Ontario
is your lawyer’s waiver deemed to be your waiver?
